Home arbitration METAMORPHOSIS FROM LITIGATION TO ADR

METAMORPHOSIS FROM LITIGATION TO ADR

FROM LITIGATION TO ADR

This article is written by Janvi Kashyap, a First year B.A. LLB (Hons.) Student of Ideal Institute of Management and Technology (Affiliated to Guru Gobind Singh Indraprastha University), Delhi.

FROM LITIGATION TO ADR

FROM LITIGATION TO ADR

Introduction: FROM LITIGATION TO ADR

The term ADR stands for “Alternative Dispute Resolutions”. ADR is a contrivance of dispute resolution that is non adversarial, that is working together co-operatively to reach the best possible resolution for everyone. ADR is severely helpful in reducing the burden of litigation on courts, while delivering a versatile and satisfying experience for the parties involved. Moreover, whether it’s the case of fulfilling the interest of the parties, or its collaborative bargaining, it provides the opportunity to “expand the pie”. ADR is generally classified into the following types: Arbitration, Conciliation, Mediation, and Negotiation.

Arbitration:

In Arbitration, the disputes are submitted to an arbitral tribunal which makes a decision (an “award”) on the dispute that is mostly binding on the parties. It is less formal as a compared to a trial, and the rules are often relaxed in case of evidence. Moreover, there is no right to appeal an arbitrator’s decision. But there is one exceptional case for some interim measures, there is very little scope for judicial intervention in the arbitration process.

FROM LITIGATION TO ADR

Conciliation:

It’s a non-binding procedure in which an impartial third party known as the conciliator. The conciliator serves the recommendations regarding the settlement dispute; it is totally up to the parties in reaching a mutually satisfactory conclusion to the dispute. Conciliation is less formal than that of Arbitration. Therefore, it is tremendously less formal as compared to a trial. The parties are not bound by recommendations of the conciliator, they are free to reject it and accept it. However, if the acceptance of the settlement document drawn by the conciliator is come from both the parties, then it shall be final and binding on both.

FROM LITIGATION TO ADR

Mediation:

In mediation, a neutral or an impartial person called a “mediator” helps the parties try to reach a mutually acceptable conclusion of the settlement dispute. The mediator does not decide the dispute but helps the parties resolve and communicate so they can try to settle the dispute themselves; whereas the parties are not bound by the mediator’s recommendations.

Basically, Mediation is a method and a type of ADR in which the parties retain power to decide the issue by themselves without vesting that power in an outside decision maker. It relies on neutral mediators who facilitate the mediation process to assist the parties in achieving an acceptable, voluntary agreement. Mediation less formal than arbitration or litigation but it is more formal than negotiation. Litigation is relatively expensive, slow, and unconfidential, unlike Mediation. Mediation is straightly opposite to the litigation in these aspects. However, nonbinding mediation agreements may be incorporated into a legally binding contract, which is binding on the parties who execute the contract, but on the other hand nonbinding mediation resolutions are not binding on the parties.

Mediator’s plays very indispensible role in Mediation, if the Mediation is successful then it will not only reflects the willingness to the parties t participate but also skills of Mediators. Therefore, this process does not follow a uniform set of rules and regulations, though mediators typically set forth rules that the mediation will observe at the outset of the process. On the account of Mediator there is no set of rules and regulations for the licensed Mediator, which may vary state to state for the certification of the Mediator. Hence, Mediator set forth  the rules in the mediation process to resolve the dispute between the parties.

FROM LITIGATION TO ADR

Negotiation:

Negotiation is a non-binding procedures in which discussion are initiated between the parties without any interference of the third party with the aim to resolve the dispute and come to the negotiated conclusion from both the sides. It is the most common and supportive method of alternative dispute resolution.

This process takes place in non-profitable institutions and organizations, legal proceedings, government heads, throughout the nations and in personal situations also such as parenting, and everyday life.

The role of ADR in India

The Legal Services Authorities Act was passed in 1987 to encourage out-of-court settlements, and the new Arbitration and Conciliation Act was enacted in 1996. Procedure for plea-bargaining was included in the Code of Criminal Procedure in 2005[1]. Lok Adalat which is also known as “people’s court”. It comprises an informal setting in the presence of judicial officer which facilitates negotiations without emphasis on legal technicalities. The order of the Lok-Adalat is final and binding on the parties. The parties have to follow the decision of the Lok Adalat and are not appealable in a court of law

ADR comprised of above mentioned types that is negotiation, conciliation, mediation, and arbitration. Moreover, ADR also include minitrials, hybrid forms of mediation-arbitration (with elements of both), and collaborative goal-oriented processes, but these types of ADR are used very rarely. ADR is used very frequently to resolve the disputes among different branches of settlements such as businesses, employers and employees, and businesses and consumers. In many types of conflicts, ADR is used to resolve them and for surely decrease the pressure of courts. Many of times, ADR strategies can be used in domestic law and personal cases as well, such as divorce, or in international legal issues, just like issues relating to transboundary pollution.

Conclusion

Alternative dispute resolution (ADR) is a very popular and mechanism to resolve disputes in many different aspects of settlements between the parties. In official matters, in organizations, and in businesses. Alternate Dispute resolution is commonly used in business to business (B2B), business to consumer (B2C), and business to employee (B2E) disputes. Therefore, several methods of ADR is applied as per the raised issue. The most commonly employed methods include negotiation, mediation, and arbitration. Under federal law, national policy favors arbitration. In some cases, Alternate Dispute Resolution is discerned as unfair.

FROM LITIGATION TO ADR

This due to the fact that the subject matter of the dispute is not considered suitable for ADR, or because parties have unequal power as compared to one another. Like other areas of law and public policy, Alternate Dispute Resolution is vague and dynamic subject to change, particularly when special interest groups coalesce successfully and create momentum for change within our legal system. Recently, there is a fledgling movement to exclude certain types of disputes from ADR by amending the federal law that requires mandatory arbitration when parties have satisfied and contractually consented to it.

Indian courts suffer from a serious backlog of cases, which is mainly due to less number of judges and insufficient infrastructure which is unable to handle the caseload. India being a developing and growing country, going through some crucial reforms and cases within the framework of the rule of law which eventually increased the burden on the courts. But ADR is the only solution to lessen the work load on the courts and contributes in the major developing sector of the nation in the form of arbitration, conciliation, mediation and negotiation

FROM LITIGATION TO ADR

By virtue of Code of Civil Procedure amendment in the year 2002, Section 89 has been included, which gives importance to mediation, conciliation and arbitration. This section creates binding and makes it obligatory on the part of the court to forward the matter for settlement either before the Lok Adalat or other methods enumerated in that section.

Now it has become an international phenomenon to resolve commercial disputes through arbitration and not through normal judicial system. Majority of the persons do not want to become involved in lawsuits due to delays, high costs, unwanted publicity, and ill will. Alternate Dispute resolution, on the other hand is usually faster and inexpensive, and it is also less formal than that of trial courts.

FROM LITIGATION TO ADR

Moreover, it is conclusive as well. In addition to reducing the burden on the Courts and giving speedy justice to people, Alternative Dispute Resolution mechanism have been introduced and are being utilized for a number of other reason. Alternative Disputes Resolution mechanisms are relatively inexpensive in comparison with the ordinary legal process.

 These mechanisms, therefore, help litigants who are unable to meet the expenses involved in the ordinary process of dispute resolution through Courts. Furthermore, Alternate Dispute Resolution helps to increase the enhancement of the community to participate and resolve the dispute. Alternative Dispute Resolution mechanism (ADR) is not a replacement of litigation, rather it would be used to make our traditional court systems work more efficiently and effectively. Therefore, we have to formulate worthwhile Alternative Dispute Resolution mechanisms to ease and decrease the present burden of judicial functioning.

FROM LITIGATION TO ADR

The backlog of cases is increasing day by day; however, judiciary alone is not responsible for the same. Last but not the least, it must be noted that the backlog is a product of inadequate judge population ratio and the lack of basic infrastructure. The government must have to play a pro-active role in this direction. The researcher is of the view that in order to make Alternative Dispute Resolution Mechanisms more effective and taking it out of very narrow and limited area of application and widening the area of its operation. Further the lawyers have to play a very active and positive role and they should never forget that dispute is a problem, which needs to be won.

FROM LITIGATION TO ADR

FROM LITIGATION TO ADR


[1] Plea-bargaining is best described as a “pre-trial negotiation between the accused and the prosecution during which the accused agrees to plead guilty in exchange for certain concessions by the prosecution.”

FROM LITIGATION TO ADR

This article is edited by Rupreet Kaur Dhariwal.

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