Alternate Dispute Resolution

Justice is a key component in any civilization for its existence and not merely an idealized concept. To administer the same, Courts of Law are established and empowered to deal with the disputes brought before them. The system tends to achieve the above-said purpose by resolving the disputes between/among various parties, as per the established Substantial Law, according to the procedure provided in the Code of Civil and Criminal Procedure, depending on the nature of the matter.

Now, as it can be understood logically, the survival of the human race is fundamentally dependent upon cohabitation and unity amongst its members. Disputes are bound to arise, no questions about that, but the purpose of their resolution is not only delivering justice, but also down the line, to restore the harmony between the concerned parties, so that peaceful cohabitation can be re-established once their dispute has been resolved. However, over time, it was noted that the dispute resolution by the Courts of Law was crushing down the possibility of any such harmonious reconciliation amongst the involved parties, to an irretrievable stage. As it is popularly said after all, ‘Legal adjudication may be flawless but it is certainly heartless.’  Therefore, an urgent need for a method, which could provide parties with a different recourse than the courts for resolving their disputes, arose.

Now such process of resolving disputes outside the traditional Courts is termed as 'Alternate Dispute Resolution'. The term manifests the scope of endless possibilities in itself, covering a broad spectrum, as compared to its traditional counterpart. There is no universal definition to this term and it is used in a very general manner. Several definitions which put forth a sufficient meaning of ADR*, are listed below:

1. Any process or system of Dispute Resolution except Litigation, which may be binding or not, depending upon the method employed, is called Alternate Dispute Resolution. 

2. A set of approaches and techniques aimed at resolving disputes in a non-confrontational way, is called Alternate Dispute Resolution. 

3. A structured dispute resolution process, whereby parties to a dispute, themselves negotiate their own settlement with the help of an independent intermediary, called Mediator, is known as Alternate Dispute Resolution.

-Karl Makie and Lightburn 

Any form of Dispute resolution, except adjudication by Courts, as a part of the justice dispensation system established and administered by the State, is known as Alternate Dispute Resolution.

Overtime, the concept of ADR has developed internationally, beginning in roughly, the 19th century itself, in the US, followed by various common law countries like Australia, where it witnessed a steady development. As far as India is concerned, it has been an ancient concept, running in the forms of informal tribunals or Panchayats, etc. These systems incorporate the system of ADR in their structure, as well as functionality.

One can conveniently observe the reasons for the need of ADR portrayed in the Objectives or Goals of ADR, which are as following:

1. The primary objective of ADR is to avoid any vexation, unnecessary delay and unnecessary expense, which are few of the famous features of regular Courts. Proceedings in the Court are quite vulnerable on the vexation front where manipulation of the procedure or any minute rules or regulations can be done and justice can be thereby thwarted. However, in the mechanism of ADR, such vulnerability is severely curtailed, the logic behind which shall be explained in the following sections. 

2. Facilitating and promoting the concept of 'Access to Justice.' 

3. It also aims at relieving excessive burden on the Courts, in forms of numerous matters piled up before them, thereby congesting the Judiciary of the nation. 

4. Save people from any undue costs and delay which people might be manipulated into suffering or may genuinely be caused by the obvious design of the system. 

5. It further aims at enhancing the Community involvement in the Dispute Resolution processes, thus aiming at spreading the awareness not only about the underlying law of the land, but also the importance of amicable dispute resolution. 

6. To provide more effective and efficient Dispute Resolution to the society. 

7. It addresses not only the substantive dispute between the concerned parties, but the underlying ill-will as well, increasing the chances of preserving harmony between the concerned parties, which is definitely contingent, yet certainly more than the traditional Court proceedings.

In the following points, the nature of ADR stands summarized for a better understanding of the concept.

  1. ADR represents only a change in the forum and not in the substantive rights of the parties, which still stand protected under the law.
  2. ADR promotes Direct participation of the parties to the dispute in the resolution process as compared to the Courts of Law where the Advocates take up the charge on behalf of the parties and the Judges decide the matter as per the applicable law, thereby minimizing the actual role of the parties in the resolution process.
  3. ADR also tends to increase the satisfaction in the outcome.
  4. It is based on an integrative approach due to which it becomes flexible in nature.
  5. It tends to be more co-operative and less competitive.
  6. ADR is private and confidential, which is not the case in Litigation proceedings. However, one cannot legally rely on the settlements arrived through most methods in ADR.
  7. ADR incorporates both preventive measures and ways to channelize disputes, well integrated under the shadow of law, despite taking place outside the formal system.
  8. Any settlement or decision reached through ADR may be binding or non-binding, depending on the method chosen.

There are various forms of ADR over the world, that have been listed below:

  1. Negotiation - Not binding
  2. Mediation - Not binding
  3. Conciliation - Not binding
  4. Mediation-Arbitration - Binding, if decision taken during Arbitration
  5. Mini-trial - Not binding
  6. Arbitration - Binding
  7. MEDOLA - Binding
  8. Rent a Judge - Non binding
  9. Michigan Mediation - Binding
  10. Neutral Listener Agreement - Non binding
  11. Arbitration-Mediation - Binding, if arbitral award leads to decision
  12. Early Neutral Evaluation - Non binding
  13. Final offer Arbitration - Binding

There may be other forms of ADR as well, since the concept of resolving disputes without approaching the Courts may take different forms and shapes in different places in the world. Some of the listed above, are quite important, though, and shall be discussed in the upcoming works.

In India, several of the processes of ADR have gained Statutory recognition even, in the Code of Civil Procedure, based on various reports of the Law Commission of India. Various statutes have also been formed in the furtherance of the same, but shall be discussed in the near future.

Considering the Indian aspect of ADR, one must be aware of two landmark judgments where the Supreme Court has addressed a very significant area concerning ADR.

Agarwal Engineering Co. v THM Industries
AIR 1977 SC 2122

Justice Krishna Iyer held that the Commercial causes should be preferably resolved or dealt by non-litigation methods or Alternate modes of dispute resolution, since the forensic processes are dilatory and contentious and thereby hamper the flow of trade and result in harm being caused to both the sides.

He stated, 'Legal adjudication may be flawless but is heartless.' Further, it was suggested that any negotiated settlement can prove to be quite more satisfying, despite the departure from the Strict law.

Afcons Infrastructure Ltd. v CVC Co. (P) Ltd. (2010)

Herein, the Apex Court laid down the categories of the cases, which will be eligible for resolution via ADR methods and even those, which will not be so.

Categories of Cases eligible for Alternate Dispute Resolution

  • All cases related to Trade, Commerce and Contracts.
  • All cases substantially based on Strained or Soured relationships (like Family or Matrimonial disputes)
  • All cases where there is a need for continuation of the pre-existing relationships between the parties to such disputes, despite the existence of such disputes (like Easement based or Employee-Employer based cases)
  • All cases which involved any tortuous liability.
  • All cases which are Consumer disputes.
  • All cases which involved only Compoundable offences. 

Categories of Cases not eligible for Alternate Dispute Resolution

  • All cases which are Representative suits under Order 1, Rule 8 of CPC
  • All cases based on Election to Public Offices
  • All cases involving Grant of authority after an enquiry by the Courts
  • All cases involving serious and specific allegations of fraud, fabrication of documents, forgery, impersonation, coercion, etc.
  • All cases where Protection of Courts is required
  • All cases where Prosecution for criminal offences is required.

Now that the stance of the Judiciary in India is clear over the matter, advantages of ADR are listed below to help people understand the benefits of ADR over the traditional Courts of Law:

  1. It offers flexible timing for initiation as well as termination of the concerned matter.
  2. It reduces the no. of contentious issues and usually offers better solutions.
  3. It tends to be expeditious and less expensive as well.
  4. It is quite private and confidential, especially when compared to the usual Court proceedings.
  5. It promotes creative and realistic solutions.
  6. It is quite flexible in the sense that it is not bound by the formal rules of procedure that the Law sets forth.
  7. It doesn’t affect the freedom of the concerned parties to engage in litigation over the same matter.
  8. It can be participated in with or without engaging a Lawyer.
  9. It would significantly help the Judiciary by resulting in the reduction of workload to quite an extent, thereby also causing an improvement in the quality of decision making of the Courts.
  10. It also permits the parties to set up their own terms of dispute resolution and even to choose expert neutrals who would then assist them in resolving their disputes.

Hence, with the growing number of disputes in our nation, a large no. of which are based on commercial, contractual, labor, matrimonial and family matters, it becomes of great significance to establish a mode of dispute resolution which addresses the direct dispute between the parties as well the underlying good-will and relations between those parties, so that ultimately, not even the dispute is resolved but in the aftermath, the parties can peacefully co-exist, being satisfied with the outcome or settlement, thereby reducing the chances to further disputes in future, arising out of the previous disputes. With practical progress, there can be no better solution to such issues than Alternate Dispute Resolution, especially here in India.

 

Arjun Kohli 
on 09 August 2017
Published in Others
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