ALTERNATIVE DISPUTE RESOLUTION: AUXILIARY FOR LITIGATION IN INDIA

ALTERNATIVE DISPUTE RESOLUTION: AUXILIARY FOR LITIGATION IN INDIA

This Article is written by Rahul Negi pursuing B.B.A-L.L.B(Hons) from Law College Dehradun (Uttaranchal University)

Alternative Dispute Resolution (ADR) is the practice of solving disputes without litigation and outside the court, thus External Dispute Resolution (EDR) is synonym to the concept of Alternative Dispute Resolution. The practice of ADR is not only confined to one mechanism but instead it is the combination of the various methods which the parties in dispute may use to settle their disputes with the aid of third neutral party. The mode of ADR is rapidly being embraced as an instrument to settle the disputes between the parties as an alternative to the traditional method of Litigation. The ADR proceeding are more collaborative which provides the parties in dispute with the opportunity to come up with the solutions which is in favor and harmony with the parties to the dispute. The practice of ADR is being implemented generally in disputes related to labours, divorce, family disputes, and personal injuries as an effective alternative to adversarial litigation.

HISTORICAL BACKGROUND:

The practice of ADR in India is no new but an age old practice dating back to Vedic times which with time modified and then compiled into the modern Act called ?The Arbitration and Conciliation Act, 1996? with timely amendments in it by the government. The development of ADR in India can be classified into the two periods:

? Pre-Independence Period:

The practice of settlement of disputes without the involvement of Court dates to Vedic period where the mode of Arbitration and meditation were used to settle the disputes. The disputes were settled by Panchayats, the decision of which had the binding effect on the parties. The thesis of which is mentioned in Bhrandarnayaka Upanisads.

Then with the arrival of the Muslim rule in India the practice of ADR got modified according to the Muslim laws and was called Hadeya but the practice of Arbitration and Meditation still prevailed. Under the Muslim laws, the mode of Arbitration was called Tahkeem, in which a Kazee (an official judge) decides the matter and his decision had binding effect on parties of dispute.

It was the British rule under which the modern ADR took its modern form. The British government brought the Law of Arbitration in three presidency towns of India which are Calcutta, Bombay and Madras as Bengal Resolution Act, 1772 and Bengal Regulation Act, 1781 which were repealed with the enactment of Civil Procedure Code, 1859. The Civil Procedure Code, 1859 was also repealed by Civil Procedure Code, 1882 which ultimately got repealed by the present Civil Procedure Code, 1908. The Civil Procedure Code, 1908 under Section 89, Section 104 and Second schedule deals with Arbitration.

The British brought Indian Arbitration Act, 1899 for India. This Act just expanded the area of Arbitration in India.

Then Arbitration (Protocol and Convention) Act, 1937 was brought by the British for India which was to give effect to Geneva Protocol on Arbitration Clauses Act, 1923 along with Execution of Foreign Arbitral Awards, 1927.

In 1940 British brought The Arbitration Act, 1940 to deal with arbitration within India without the interference of the Court in suits. This Act consolidated the Indian laws and gave the road map for the modern Act, The Arbitration and Conciliation Act, 1996.

? Post-Independence Period:

The Arbitration and Conciliation Act, 1996was enacted in India which repealed the previous The Arbitration Act, 1940. The main objective for the enactment of the Arbitration and ConciliationAct, 1996 was to overcome the demerits of the act of 1940, with the main aim as to provide the speedy settlement of the dispute of the parties. The Arbitration and ConciliationAct, 1996 was enacted so as to implement the guidelines of model law for arbitrational proceeding in accordance with United Nations Commissions for International Trade Law (UNCITRAL) so as to meet the requirements of domestic as well as International standards of dispute resolving between the parties.

OBJECTIVES:

The practice of Alternative Dispute Resolution is not mandatory rather it is optional process as an alternative for the mode of Litigation to settle disputes of parties. The process of ADR came into existence due to the following purposes:

? to provide the opportunity to themselves in order to come to the solution of the disputes.

? for speedy settlement of the dispute between the parties.

? as a collaborative approach against the process of litigation.

? as to resolve the dispute of parties in harmony with the principle of Natural Justice.

? to resolve the dispute in favor and harmony between the parties of dispute.

? to provide amicable solution to parties of dispute.

? to completely resolve the dispute between the parties without further challenges.

? as this mode is less expensive.

MECHANISM OF ALTERNATIVE DISPUTE RESOLUTION:

The mode of Alternative Dispute Resolution is non-adversarial rather it is collaborative between the parties of dispute. Also, the Legal Services Authorities are responsible to promote the Alternative Dispute Resolution to promote mutual settlement between the parties of dispute. In the Arbitration and Conciliation Act, 1996, the Part I of this Act endorses the process of Arbitration and the Part III relates to the process of Conciliation.The dispute between the parties is resolved in ADR with mutual settlement with the aid of the third neutral party who can be arbitrator, consolidator, mediator or presiding officer depending on the mechanism chosen by the parties. The mechanisms of Alternative Dispute Resolution are:

A. Arbitration:

The Part I of The Arbitration and Conciliation Act, 1996 endorses the process of arbitration. The Section 7 of the Arbitration and Conciliation Act, 1996 speaks of the arbitration agreement, which says that arbitration process can start only when there is valid arbitration agreement between the parties of dispute and the agreement is a written agreement. The essentials for the arbitration agreement are:

? All or certain dispute between the parties are to be submitted for the arbitration.

? The agreement between the parties of dispute must be written.

? Dispute between the parties must be on the pre-defined subject matter.

? The agreement must be signed by both the parties.

? Agreement can be in:

i. separate document

ii. arbitration clause

Any party of dispute can begin with the appointment of the arbitrator but if the other parties do not collaborate then the appointing party can directly approach the Chief Justice of High Court for the appointment of the arbitrator for the settlement of dispute. Arbitrator is the third neutral party which will aid in settlement of the dispute; also the decision of the arbitrator is final and binding.

B. Conciliation:

The Part III of The Arbitration and Conciliation Act, 1996 endorses the process of Conciliation.

The method of conciliation is similar to arbitration rather informal form of arbitration where a party requests another to appoint conciliator for the settlement of dispute. The principles of conciliation are:

? Appointment of Conciliator (Section 64)

? Independence and impartial for amicable settlement (Section 67(1))

? Fairness and Justice (Section 67 (2))

? Speedy Settlement (Section 67 (3))

? Secrecy (Section 70)

? Cooperation of parties in dispute with the conciliator (Section 71)

? Suggestion of Parties for dispute resolution (Section 72)

Conciliator is the third neutral party which will aid in settlement of the dispute there can be one or more than one conciliators but in case of more than one conciliator all must act jointly. If any of the parties in dispute rejects the offer of conciliation then there can be no conciliation. Also, the conciliation decision will be binding to the parties of dispute if they had signed the settlement document.

C. Mediation:

Mediation is voluntary process in which the third neutral party called Mediator aids two or more parties of dispute to reach an agreement. In mediation parties themselves resolve the dispute mutually rather than accepting the condition imposed by the third party to resolve the dispute. Essentials of Mediation are:

? Neutral Mediator

? Secrecy

? Voluntarily

? Fairness and Justice

? Suggestion of parties for dispute resolution

Mediator uses befitting tactics to assist the parties so as to reach the settlement in dispute. In the mode of meditation the parties in dispute can be individuals, establishments, states or other representatives.

D. Negotiation:

Negotiation is the mechanism in which there is no third party involved instead the parties in dispute come up together to negotiate with each other to settle the dispute with mutual cooperation. Negotiation is the general phenomenon which occurs in day-to-day life, personnel situation, among nations, business, legal proceedings and other such activities. Negotiators are those who work to negotiate such as brokers, diplomats, legislators, union negotiators and hostage negotiators. The process of negotiation is considered to be most primary method of the Alternative Dispute Resolution.

E. Lok Adalat:

Lok Adalat means the People?s Court. There is no procedural requirement for the Lok Adalats thus the proceeding in Lok Adalat are swift and inexpensive. India shares long history of resolving the disputes through mediation by the villages? elders but in Lok Adalats it is retired judges, legal professionals, or social activities who presides these Lok Adalats. The Lok Adalats are equal to the Civil Courts as the proceedings by Lok Adalats are considered to be judicial proceedings. The nature of cases Lok Adalats deals with is:

? Offences which are not compoundable.

? Any other case pending before the Court.

? Case not filed before the Court.

The Lok Adalats are organized at the State Authority level, the High Court level, the District level, the Taluk level, the National level, the Permanent Lok Adalats and the Mobile Lok Adalats.

F. Plea Bargaining:

The Chapter XXI A, Section 265 A to 265 L of Code of Criminal Procedure, 1973 deals with the mechanism of Plea Bargaining. The Plea Bargaining is the pre-trail negotiation, where the accused agrees to plead liability before Court in exchange for concession of his sentence. The negotiation is between the defender and the prosecution. The plea bargaining are of the following types:

a.) Charge Bargaining:

The option vested with the accused to plead guilty either for lesser charge or only on some charges against him.

b.) Fact Bargaining:

The option vested with the accused to plead guilty in exchange of lesser inculpating of facts.

c.) Sentence Bargaining:

The option vested with the accused to admit guilt and settle for lesser sentence.

G. Section 89 of Civil Procedure Code, 1908:

This Section deals with the settlement of the disputes between the parties of dispute through minimizing the cost and burden on the Courts without the interference of court. A mandatory duty has been imposed on the Civil Courts for the resolution of disputes through ADR for the parties of dispute. Under Section 89, five ADR modes are Arbitration, Conciliation, Lok Adalats, Judicial Settlement and Mediation. The Rule 1A, 1B,1C of Order X of Civil Procedure Code, 1908 are read with the Section 89 to give full effect to the Section 89.

CONCLUSION:

The Alternative Dispute Resolution has provided the disputants a new platform to resolve their disputes with collaborative approach which in turn also is speedy and less expensive alternative against the traditional and adversarial approach of litigation. The mechanisms of alternative dispute resolution are optional not mandatory mode of dispute settlement where the parties of dispute can on their own bring up the solution of their disputes. Thus, Alternative Dispute Resolution had rapidly gained the vast popularity which in turn has also lowered burden over the courts and manifested the objective of social justice.

REFRENCES:

? What is Alternative Dispute Resolution? https://hirealawyer.findlaw.com/choosing-the-right-lawyer/alternative-dispute-resolution.html

? The Evaluation on Arbitration In India https://www.mondaq.com/india/Litigation-Mediation-Arbitration/537190/Evolution-Of-Arbitration-In-India

? https://nalsa.gov.in/lok-adalat

? Plea Bargaining http://vikaspedia.in

? Image Credit: www.property118.com how-adr-works-in-tenancy-deposit-disputes