ADR evolution in India

Author: Ashwin Singh, Student, Symbiosis Law School, Pune (Symbiosis International Deemed University)

Introduction

The Indian judiciary system dates back to thousands of years thus making it the oldest judiciary system in the world. In early Vedic times, laws were made keeping dharma in mind due to which people used to follow them for several years, even when there were no laws people used to follow – justice, equity and good conscience to differentiate between right and wrong. Back to the current scenario, the Indian judiciary system has significantly developed in the administration of justice. The Indian justice serving mechanism is notoriously famous for its delayed justice delivery system, the courts are flooded with cases and overburdened due to which cases are piling up. As the legal maxim goes “justice delayed is justice denied” speedy trial is the need of the hour to ensure effective remedy.

Due to these drawbacks, people have started opting for ADR (Alternate Dispute Resolution) to settle cases out of the court in a peaceful manner and ensures the welfare of both parties.

The concept of ADR

Alternate Dispute Resolution as commonly known as ADR includes all the methods by which a dispute can be resolved without going to a judicial institution. ADR primarily focuses on speedy delivery of justice in a cost-effective manner.

Disputes that can be settled through ADR are-

 ( I) All cases relating to Business, trade, commerce and contracts, including—disagreements arising out of provisions of contracts (including all money claims)

-disputes relating to performance of specific acts

-clashes between customers and supplier of goods

-disputes arising between the bank and its account holders

-disputes relating to real estate.

-disputes between landlords and tenants

-disputes relating to providing of insurance

(2) All cases arising from soured relationships, including—

-disputes relating to marriages, maintenance, custody of children

-disputes as to partition of property among the family, coparceners, etc.

-disputes among partners relating to partnership

(3) Cases where there is a need for a resolution without altering the previous relation.

-disputes between neighbours (relating to parking, nuisance, noise complaint, etc.)

-clashes between employers and employees

-disputes among people living together societies.

 (4) All disputes relating to tort and its liability, including—

-Claims for accidents or negligence.

 (6) All offences which are referred to as compoundable as per the Code of Criminal Procedure 1973.[1]

Modes of ADR in India

There are various modes of ADR according to Section 89 read with Rule 1-A of Order 10 of Civil Procedure Code, thus the different methods are

1.Arbitration

2.Mediation

3.Conciliation

4.Negotiation

5.Lok Adalat

1.Arbitration

In arbitration the dispute between two or more parties is settled by a certified arbitrator/s, he acts as a neutral third party. Before proceeding further, the parties to arbitration have to sign an “arbitration clause “with consent, that the parties will resolve their disputes through an arbitration process. It can be distinguished from mediation and negotiation, as the decision of the arbitrator is binding on both the parties and their decision is called “award”. This process enables the parties to settle the dispute outside of the court and avoid litigation, due to which the decisions are delivered faster and, in a cost-effective manner.

Section 8 of Arbitration and Conciliation Act, 1996 states that a judicial authority before which an action is brought in a matter which is the subject of an arbitration agreement shall, if a party so applies not later than when submitting his first statement on the substance of the dispute, refer the parties to arbitration.[2]

2. Mediation

In the process of mediation, a neutral third party known as the mediator helps the party to resolve the disputes. It is a straightforward, voluntary, party focused process. Parties in mediation peacefully resolving their disputes by using specified communication and negotiation techniques.[3] It is different as compared to arbitration because mediation is a process which is controlled by the parties themselves. The mediator only acts as a guide and only helps the party to reach a solution. Both the parties describe their side to each other and decide a solution that acts as a win-win situation for both of them. As compared to the traditional litigation process the mediator can not impose decisions on the parties, the parties have to mutually decide to resolve the matter. An easy example of mediation can be drawn from the fact that the village panchayats act as a facilitator/ mediator and helps in describing the possible solutions through which the parties in dispute derive a conclusion.

3. Conciliation

The process of conciliation is an informal one in the ADR process. It involves a conciliator and he meets the parties to dispute separately. This is done so that the parties can discuss their problems openly with the conciliator, to reduce tension and to improve communication between the parties. The primary difference between mediation and conciliation is that in the former the mediator acts as a neutral third party and guides the party to dispute to a solution, but in the latter one, the conciliator aims at bringing the parties together and explain the parties the requirement of the other one, to bring them both to a compromise situation. The decision of the conciliator is not binding on both the parties and they can choose to accept or reject it.

4. Negotiation

Negotiation is the most sought after process in ADR, it is termed as the simplest and widely used process, it is used in day to day lives as well. It uses no neutral third party like Arbitration. Instead, the parties themselves come to a middle ground and settle the dispute amicably. The outcome of the decision is nonbinding in nature and the dispute can be sent to further appeal if one of the parties is dissatisfied. The parties voluntarily decide to resolve the conflict due to which numerous solutions can be derived.

5.Lok Adalat

Also known as “people’s court” is formed by NALSA (National Legal Service Authority) along with other institutions to make judicial proceedings faster. The main aim here is to settle the disputes amicably, there is no fees and the aggrieved parties can directly contact the judge, due to which the process moves in a faster manner. The Lok Adalat is conducted at a regular interval. The Legal Services Authorities Act was passed in 1987 which paved way for out of court settlement due to which Arbitration and Conciliation Act 1996 was enacted.[4]

Advantages of ADR

1. Speedy justice delivery mechanism

2. As compared to the traditional litigation process, ADR is cost effective

3. The matter of the parties is confidential.

4. Due to peaceful dispute resolution a good relationship is maintained between the parties

5. ADR aims at welfare of the parties and gives effective solution for the same

6. One to one interaction and counseling from the arbitrators.

7. Language barriers are not there as the proceedings can be done according to their chosen language.

Conclusion

ADR has been in use since time immemorial, earlier people use to settle their disputes between themselves to avoid lengthy procedures and sour relations. Marriage disputes, property matters and family fights are mostly resolved by the elders or some neutral third party (usually panchayat head). All this was done to avoid unnecessary fights and reduce. As of today, ADR has been doing the same work as discussed above but in a more effective and open manner, now people have been more aware and focused on cost cutting and timed saving. No doubt ADR has been a pole bearer in proving timely justice to the parties in dispute.

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[1] https://viamediationcentre.org/readnews/MzM1/Disputes-which-and-cannot-be-settled-by-Alternative-Dispute-Resolution-ADR

[2] https://indiankanoon.org/doc/1146817/

[3] https://www.ijsr.net/archive/v8i4/ART20197063.pdf

[4] https://nalsa.gov.in/lok-adalat