Alternates Work!

Humans have evolved through various phases from being treated with cruelty to the recognition of rights and from those rights to justiciability in the temples of justice i.e., Courts. People majorly opted for total litigation process but gradually, the general public and even the Legal Profession started understanding, recognising and accepting the ADR (Alternative Dispute Resolution) which is smarter and less time consuming and is considered a fair practice.  It is said to be non-adversarial and as simply the name suggests is different from the conventional way of dispute resolution. ADR’s actual intent lies in Article 14 and 21 of The Constitution of India as “Equality before Law and Right to life and personal liberty respectively”. It is expeditious and can be used in business and labour disputes, divorce cases, in tax-claims issues etc…  Even before a case goes to court or tribunal, ADR can be opted for by the disputing parties, ADR is very flexible in nature and an ADR practitioner who is an independent person presides over such dispute ex: mediator. The resolution of disputes takes place usually in private and is more viable, economic, and efficient. ADR is ordinarily classified into at least four forms: negotiation, mediation, collaborative law, and arbitration. During the period of the 90s, there was an utter need in India for bringing out such a legislation which reduces the load over the Indian Judicial System and to fight against the issues of pendency. Chronologically speaking the inception of ADR in India has been embedded but was not very formally recognised but then s.89 of Civil Procedure Code,1908 enshrines the element of settlement between parties for arbitration proceedings, then came in the system of Lok Adalats for alternative dispute redressal as under Legal Services Authorities Act, 1987 and then finally in 1996 came The Arbitration and Conciliation Act and s.30 most widely encourages the parties in dispute to take the realm of arbitration, mediation, conciliation and other such procedures to encourage settlement. There is a stark difference between ADR and Litigation some of them are as follows:

  •    In Arbitration, the settlement doesn’t take place traditionally in Courtrooms, as it does in litigation.
  •    Arbitration may call for a choice of law and which is not the case in litigation.
  •     Lawyers may or may not play a role in Arbitration proceedings and on the contrary litigation calls for the involvement of lawyers to present the case before the judges.
  •    In litigation, judges may not have technical knowledge in all cases but in arbitration, an expert can be appointed for dispute redressal.

 

After understanding the differences between ADR and Litigation let us proceed further with the basic types of ADR, gives as follows:

  1.    Arbitration: The process of arbitration is triggered when there is legal Arbitration Agreement between the parties even before the dispute arose, which must essentially be in writing. The decision which is made is called the ‘award’.
  2.    Conciliation: The process of conciliation is not as formal as arbitration and does not require an agreement in prior. Any party can call for the appointment of a conciliator who is a third party who assists in dispute resolution, in simpler words, it is a compromise settlement.
  3.    Mediation: Mediation is that sort of legitimate intervention in the dispute of a third party who prima facie has no authority to make a decision. The mediators help in improving situations and creating a dialogue between the disputants to come to an agreement.
  4.    Negotiation: It is a primary method of dispute resolution and knowingly and unknowingly we practise it in our day to day lives. It is bargaining for a collective advantage for designing such course of action as agreed.
  5.    Lok Adalats: It is most commonly known as the “People’s Court”, and the main focus is on compromise and if such is not achieved the case moves to the Court. It is a system based on Gandhian Principles and voluntary efforts are highly encouraged.

Hence, Alternative Dispute Resolution is a very efficient concept which can definitely aid in fighting the issue of pendency, state being directly or indirectly becoming a part of pendency by fighting against the citizens, adjournments and other such reasons that may hamper and slow the working of judiciary when an alternative can effectively do the needful with a fast track approach.

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Author
Ayushi Richa Mishra
Ayushi Richa Mishra
4th Year BA.LLB(Hons.),
New Law College, BVDU, Pune

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