OVERVIEW OF ALTERNATIVE DISPUTE RESOLUTION MECHANISM IN INDIA
“Discourage litigation. Persuade your neighbours to compromise whenever you can. Point out to them how the nominal winner is often a real loser-in fees, expenses and waste of time. As a peacemaker the lawyer has a superior opportunity of being a good man. There will still be business enough.”
As the name itself suggest the that Alternative Dispute resolution (ADR), is an alternative to traditional dispute settlement mechanism. Court settlement system of the dispute is the traditional methods which consist of a long process of filling the cases, appearing on various dates to make an oral submission on the same and waiting for the judgement. This entire process takes years to provides the justices even in some case either party died when the judgement delivered. Currently, the Indian courts are overburdened with the number of the cases be it Subordinate courts or Superior courts. As per the Statistic of National Judicial Data Grid, 4.2 million cases are pending in the high courts of India and 33.2 million cases are pending in the various district courts. Looking at the data, there emerges the need for effective ADR mechanism to reduce the burden of the courts. Alternative Dispute Resolution is the mechanism to settle the dispute outside the courtroom with the consent of the parties. In the ADR process, the parties through their mutual effort reach at the settlement. This process is effective as both the parties are satisfied and this is efficient because it saves time and money of the concern parties.
The most common forms of Alternative Dispute resolution mechanisms are:
Mediation is the most general and popular form of ADR. Mediation is the process of settling the dispute by the intervention of the third party i.e. Mediator. The mediator is generally appointed by the court or by the parties themselves depending upon the situation. The mediator is a neutral third party who plays a vital role in coordinating the effort of both parties in resolving the disputes. The Mediator facilitates discussion between parties, assist them in identifying the main issues, help in reducing misunderstanding, help them in exploring areas of compromise and generating possible solution to solve the dispute. The mediation is basically of two types. (I) Voluntary mediation and (ii) Court annexed mediation. In court-annexed mediation, the settlement reach in mediation is enforceable in the form of a court decree. There is no such specific act in India that directly deals with Mediation but Section 89 of the Civil Procedure Code and the rules framed by various high courts under that section deal with court-annexed mediation while Part III of the Arbitration and Conciliation Act 1996 deals with private mediation. Further Part II of the Civil Procedure Alternate Dispute Resolution and Mediation Rules 2003 (the Mediation Rules) also provides for various rules relating to the mediation.
Negotiation is somewhat relating to the mediation. In the Negotiation process, the concern parties bargain with each other to resolve their disputes involving any other person. This process provides the parties with the opportunity to exchange ideas, point of difference and solution for those differences. Each party bargain to get the most favourable outcome. If any negotiator is involved, his role is limited to the extent of facilitating the process of negotiation. The Negotiation as the ADR process is not legally recognised in any statute.
Arbitration is the second most popular form of ADR. While mediation, negotiation and conciliation are non-adjudicatory processes but Arbitration is the adjudicatory process. The parties to dispute appointed neutral person i.e. arbitrator to settle their disputes. This process follows the informal court proceeding which is less procedural. The parties present their disputes to arbitrator(s). The arbitrator performs the task of a judge like admitting evidence, investigating document, etc. The arbitrator gives arbitral award as a form of judgement after analysing the dispute. The arbitration may be voluntary or compulsory depending upon the situation. In compulsory arbitration, the arbitral award is final which cannot be a challenge. Arbitration is widely used in commercial disputes. In India, the arbitration is legally recognised under the Arbitration and Conciliation Act 1996, which is based on the UNICTRAL model arbitration law. The main objective of the act is to make arbitration proceeding more effective in India. Further, this act covers both domestic and international arbitration There is various institution facilitating arbitration both national and international like Singapore International Arbitration Centre, London Court of International Arbitration and Mumbai Court of International Arbitration etc. All these institutions have their own set of rules and regulations.
The process of the conciliation is less formal than arbitration as it does not require pre-agreement for the same. The parties to a dispute appoint the third party who acts as a conciliator and help the parties in resolving their dispute. In the conciliation process, the parties rarely meet face to face, the conciliator investigates the dispute by having a separate personal meeting with both the parties. After analysing the dispute, the conciliator draws settlement point in case there exist the chance of settlement and send it to both the parties to agree upon. The process of conciliation differs for arbitration as the conciliator have no authorities to examine the witness and also make no award. It differs from mediation in the respect that in mediation party meet and resolve the dispute mutually but, in this conciliator, draw the point of the settlement. Conciliation is legally recognised under Part III of the Arbitration and Conciliation Act 1996.
5. LOK ADALAT
Lok Adalat means people’s court which is a unique system of settlement of the dispute. Under this system, an effort is made to settle the dispute of the parties using the combined technique of mediation, negotiation and conciliation. Under the civil procedure code, the power to Lok Adalat is given. The procedure adopted by this court is help in speedy disposal of the cases. The judgement of Lok Adalat is treated as the decree of the ordinary court and binding on both the parties. The Lok Adalat came into existence by Legal Service Authorities Act 1987. The Lok Adalat is the best way to provide justice to the poorer. The Lok Adalat is set up each district court in its District. In 1982, the first Lok Adalat was set up in Gujarat.
Despite being convenient, fastest and cheapest method of resolving dispute yet ADR failed to gain importance in India. The major hurdles in the way of ADR in India are that lack of clear knowledge about ADR process among the lawyers. Some lawyers themselves act as a barrier to the development of the ADR as they feared about their service fees and court appearance fees. The other major hurdle is the lack of promotion of ADR technique by both Bar and Bench. Besides these, some district courts in backward regions do not have trained mediator and there also lacks institution to provide a better understanding to the lawyers so that they act as a trained person in the ADR field. Sometimes a party to dispute also resist for ADR as they want to linger the case for a long time. One of the major defects that ADR is suffering lacks of enforceability of decision except for Arbitration, the parties always have the option to challenge it on the court and in case of conciliation, they have the option to disagree with the settlement terms in such situation entire process of ADR becomes fruitless Further, there is no such specific framework in respect to ADR in India.
The Indian judiciary is suffering through the serious problem of huge pendency of cases mainly because of a smaller number of judges and resistance by lawyers and party who wished to linger the cases. Looking at the present situation, there emerges the need that the ADR mechanism should frequently use to resolve the pending cases. ADR is not a replacement to litigation as most lawyers feared but it will make litigation more efficient and effective. In addition to this, it will also help in reducing the burden of the court. As in India, most people fear while filing cases because of these delays in judgement. Effective
Development of the ADR in India would definitely change the perception of people towards India judiciary and regain faith in Indian Judiciary for proving effective and speedy justice.
- Krishna Nigam and Mahima Raj
Law College Dehradun