This Article is written by Hitakshi Maggo student of Fairfield Institute of Management and Technology, New Delhi.
Alternative Dispute Resolution (hereafter referred to as ADR) is also known as appropriate dispute resolution. There is no such prescribed definition; it is a term which is used to identify different techniques and approaches aimed at resolving disputes. This is a process where parties to the dispute themselves negotiate for settlement with the help of an independent third party called Mediator.
ADR is termed as an access to justice whose primary objective is to avoid expenses and delays in providing justice. Basically, ADR helps to relieve court congestion with so many cases pending which can lead to delayed justice, it helps to provide more effective dispute resolution where one can mutually decide and negotiate for their own problems and settlements. Alternative Dispute Resolution is a type of process where parties directly participate rather than being run by lawyers and judges. According to the case of, Moti Ram V. Ashok Kumar & Ors., it was held that ADR is a speedy and cheap type of method to resolve the disputes, not only this under ADR proceedings are confidential which means the settlement or negotiations going on between parties it will be private in other words the proceedings are “without prejudice” and the statements whether oral or written exchange between parties to the dispute, can not be relied upon in any subsequent legal proceedings.
It basically involves non adjudicatory procedures which means it includes such measures which help parties to channelize disputes outside the formal justice system, like, Conciliation, Negotiation, and it also includes judicial settlement like, Lok Adalat and Mediation. But before discussing these aspects we have to know about which type of disputes can be settled through ADR and which are not. There is a well known case to understand this concept…
AFCONS INFRASTRUCTURE Ltd. V. CHERIAN VARKEY CONSTRUCTION Co. (P) Ltd. & Ors.
Under this case Supreme Court held categories of cases which can be settled through ADR and which can not be settled through ADR,
DISPUTE WHICH CAN BE SETTLED THROUGH ADR-
- Disputes which arises during contract like money claims and other disputes from specific performance, problems or disputes between suppliers and customers, disputes between customers and bankers, developers, builders or dispute between landlord and tenant, insurer and insured, all of these can be resolved through ADR because these are the disputes of trade, commerce and contracts nature.
- Disputes in the nature of strained or sourced relationships which basically include, matrimonial cases of maintenance, custody of children, or disputes on the base of partition in family members, co-owners or partners can be resolved through ADR.
- Disputes between neighbors related to right encroachment or employees and employers and among members of societies apartment owners can be resolved through ADR.
- All cases which are in relation to Tortious liability and consumer disputes or offences which are compoundable are included under this system.
DISPUTE WHICH CAN NOT BE SETTLED THROUGH ADR-
- Suits under order 1, Rule 8 of civil procedure code which includes public interest or interest of persons who are not even parties before court.
- Disputes in nature of election to public offences, or the cases involved suits where grant of authority by the court after enquiry like in grant of probate.
- Where there is a presence of serious allegations like fraud, fabrication, forgery, etc. are also included under this and cases required protection from court and those cases which include prosecution for Criminal offences can not be settled through ADR.
Let’s discuss the various FORMS OF ADR-
This is a form where the discussion or negotiation between parties are made without the intervention of any third party with a view to negotiate until settlement is done. The essential characteristics of this form is that objective and willingness to get that Negotiated settlement must be on both the parties. It is a communication process which resolves conflicts in a non binding way which means parties retain control over outcome and procedure. In India this form has no statutory recognition because this is a process which has no fixed rules but as usual follows a pattern to resolve.
Mediation and Conciliation are interchangeable expressions. In some jurisdictions Mediation is treated as a different form then conciliation but the scope of both the forms are same which states that the role of mutual third party totally depends on the nature of Dispute and willingness of parties. But there is a difference between mediation and Conciliation, under Mediation the third party, termed as a mediator give independent formulas or opinions to resolve the dispute after hearing both the parties, while in Conciliation the third party works as to bring parties in a frame to forget all other problems and prepared for an acceptable compromise. Under Conciliation consent of parties are mandatory to present the Dispute in Conciliation whereas there is no such consent is necessary in mediation.
3. LOK ADALAT
It is a voluntary process which includes a neutral third party to resolve the dispute. This negotiation is limited and the function of third parties is persuasive. It is established under section 19 of Legal Service Authorities Act, 1987. Under this the award given by lok Adalat is not appealable and the main focus of lok adalat is on past and present. It is a suitable form for weaker sections of society to resolve disputes in place of lengthy and expensive litigation processes. The landmark case of Delhi High Court gives directions to set up a permanent Lok Adalat which provides speedy justice to the weaker section of our society. Court also stated that there is a very huge pendency of cases in various courts which is disturbing. This situation resulted in lack of adequate members of supporting staff and the Lok Adalat where expert judges who retired and judicial officers could be utilized to resolve matters by reconciliation.
It is a binding procedure under which the Dispute is present before an arbitral tribunal including a sole or an odd number of arbitrators (who adjudicate the dispute) for speedy solutions or speedy trial. Under this arbitrator gives its decision in the form of an award which is binding on the parties. Under the case of State Of Jammu & Kashmir V. Dev Dutt Pandit, it is held by the Hon’ble court that arbitration is considered as an important dispute resolution platform which helps in speedy trial and justice, it helps in reducing the high number of pending cases in courts and cost of Litigation. Arbitration should be considered properly to have public faith in a speedy process which will help them to resolve their problems and get solutions by this process.
It is a process under which when the parties to the dispute fails to reach on a settlement through mediation then a third party, who can be original mediator or arbitrator will look into final offers maid by parties during mediation and gives his binding decision on the base of offer which he considers to be fair and just to provide justice.
These are some of the forms of ADR there are many other forms present like Neutral Listener Agreement where third party offer his evaluation and suggest settlement to attempt a negotiated settlement between the parties, Mini trial, Rent a Judge where parties mutually move to the court and asked for appointing them a retired judge for presenting there case in an informal procedure, Final Offer Arbitrations where parties give their offers individually and arbitrator choose one of them which is just and fair for the justice, etc.
Alternative Dispute Resolution can be used when the case is pending before a court for speedy settlement. It can be used to remove or minimize the possible problems between parties to resolve them and adjudicate them. ADR platform takes a day or few days to come to settlement hence, to keep a Dispute as a private matter which can be useful for their image and reputation of their property or business is important. Under this system disputes can speedily resolve with less cost than the litigation process. These platforms are flexible which means it does not contain several steps or procedures likewise in litigation. Due to several forms it is upon parties to choose methods according to them, whether binding or non binding measures. In terms of money it is really cheap and less time consuming hence, even a failed. ADR will not effect in any way else it will help in appreciating both the parties to the case not only this it will help both the parties to look into the matter deeply. Due to ADR many matrimonial relationships save from divorce or any other legal issues because it helps them to consult each other and come to the decision. Alternative Dispute Resolution helps in deduction of workload on courts and helps them to focus on those cases which need concern and should be settled through courts. It also helps in reducing pending cases and speedy settlement to disputes.
Rishabh saxena, I PLEADERS, https://www.google.com/amp/s/blog.ipleaders.in/adr-alternative-dispute-resolution/amp/
Legal Kajam, Legal service iIndia, http://www.legalserviceindia.com/legal/article-1678-alternative-dispute-resolution-adr-.html
California Courts, The judicial branch of Californiahttps://www.courts.ca.gov/3074.htm
STATE OF JAMMU & KASHMIR V. DEV DUTT PANDITAIR 1999 SC 3196
ADR Times, august 14, 2020, https://www.google.com/amp/s/www.adrtimes.com/justice-delayed-is-justice-denied/
ABDUL HASAN & NATIONAL LEGAL SERVICES AUTHORITY V. DELHI VIDYUT BOARD & ORS AIR 1999 Del 88
AFCONS INFRASTRUCTURE Ltd. V. CHERIAN VARKEY CONSTRUCTION Co. (P) Ltd. & Ors. (2010) 8 SCC 24
MOTI RAM V. ASHOK KUMAR &Ors (2011) 1 SCC 466
ALTERNATIVE DISPUTE RESOLUTION (SINGHALS PUBLICATION)