ADR: Concept and Need

Introduction

Alternative dispute resolution (ADR) pertains to a diversity of non judicial methods for settling dispute. These contain negotiation, mediation, arbitration, conciliation, confidential judging, impartial expert fact-finding, mini-trial, summary jury trial, and moderated settlement conferences.[1] Alternative Dispute Resolution (ADR) is the strategy for settling conflicts without litigation, such as arbitration, mediation, or negotiation. ADR methods are usually less expensive and more expeditious. They are increasingly being wielded in conflicts that would otherwise arise in litigation, including high-profile labour disputes, divorce litigations, and private injury claims. One of the major rationales parties may incline toward ADR proceedings is that, unlike adversary litigation, ADR protocols are frequently collective and enable the parties to appreciate each other’s stances. ADR also enables the parties to appear with more profitable results that a bench may not be lawfully authorized to inflict.[2]

ADR is a means of dispute resolution that is non adversarial, i.e. struggling jointly co-operatively to attain the best outcome for everyone. ADR can be instrumental in ameliorating the burden of trial on courts, while producing a well-rounded and pleasing occasion for the parties involved. It empowers the chance to “expand the pie” through imaginative, coordinated bargaining, and fulfil the interests driving their requests.[3]

Important Provisions Related To ADR

Section 89 of the Civil Procedure Code, 1908 renders that relief to the people, if it occurs to court there exist facets of settlement outside the court then court propose the terms of the feasible settlement and pertain the same for: Arbitration, Conciliation, Mediation or Lok Adalat. The Acts which deals with Alternative Dispute Resolution are

• Arbitration and Conciliation Act, 1996 and,
• The Legal Services Authority Act, 1987.[4]

How did the notion of ADR emerge?

As asserted in the 222^nd Report of the Law Commission of India, the Constitution has ensured access to justice for all, especially through Article 39A, which affirms that everyone must have an equal alternative of obtaining justice and this must not be negated to any citizen by rationale of monetary or other type of disabilities.  The report further asserts that ‘access to justice’ for the widespread masses in India implies access to the courts of law. But actually that has been inhibited, due to conditions like poverty, illiteracy, ignorance, social and political backwardness etc.

In an evolving nation like India, several people though live in poverty. When their liberties get infringed, they invariably do not have the fortune to combat long fights in the Court. They do not have the wealth to pay for a lawyer. They do not recognize the legal system and methods. Therefore, they frequently speculate that the court system is an obstacle. These explanations urged the Indian Government to authorize Section 89 of the Code of Civil Procedure, 1908 and reinstate the initial Arbitration Act,1940 with The Arbitration and Conciliation Act 1996, in accord with the referenda of the United Nations Commission on International Trade Law (UNCITRAL).[5]

Need of ADR in India

The policy of dispersing justice in India has come under tremendous concern for various rationales mainly because of the massive pendency of lawsuits in courts. In India, the volume of cases cataloged in the courts has indicated an incredible improvement in recent years deriving in pendency and uncertainties emphasizing the requirement for alternative dispute resolution techniques. It is in this context that a Resolution was approved by the Chief Ministers and the Chief Justices of States in a meeting held in New Delhi on 4^th December 1993 under the chairmanship of the then Prime Minister and governed by the Chief Justice of India.

It said: “The Chief Ministers and Chief Justices were of the opinion that Courts were not in a position to bear the entire burden of justice system and that a number of disputes lent themselves to resolution by alternative modes such as arbitration, mediation and negotiation. They emphasized the desirability of disputants taking advantage of alternative dispute resolution which provided procedural flexibility, saved valuable time and money and avoided the stress of a conventional trial”.[6]

Importance of ADR in India

To deal with the circumstance of pendency of cases in courts of India, ADR dabbles a substantial role in India by its diverse methods. Alternative Dispute Resolution mechanism procures scientifically advanced procedures to Indian bench which enables in curtailing the pressure on the courts. ADR furnishes numerous aspects of settlement including, arbitration, conciliation, mediation, negotiation and Lok Adalat. Here, negotiation means self-counseling between the parties to unravel their conflict but it doesn’t have any statutory commendation in India.

ADR is also established on such important rights, article 14 and 21 which deals with equality before law and right to life and personal liberty respectively. ADR’s motive is to furnish social-economic and political justice and maintain honesty in the community enshrined in the preamble. ADR also seek to accomplish equal justice and free legal aid delivered under article 39-A referring to Directive Principle of State Policy (DPSP).[7]

Advantage of Alternate Dispute Resolution

• It is less costly
• It is less time consuming.
• It is open from technicalities as in the case of supervising cases in law Courts
• The parties are independent to examine their dissimilarity of belief without any suspicion of divulgence of this fact before any law Courts.
• The last but not the least is the point that parties are amassing the sentiment that there is no loss or gaining a victory emotion among the parties by at the same time they are keeping the sentiment that their objection is retaliated and the connection between the parties is replenished.[8]

What Are The Different Types Of Alternative Dispute Resolution (ADR)?

Alternative dispute resolution is the phrase for techniques utilized to unravel conflicts without litigation in a conventional law court. Parties may examine ADR assistance like SBEMP’s Coachella Valley Alternative Dispute Resolution services before getting on to court or the court may instruct that they endeavor ADR before litigation.

• ARBITRATION: Arbitration pertains to listening to both stories by an impartial third party called an arbitrator who will come to conclusion which may or may not bind the parties.
• TIMELY NEUTRAL EVALUATION: A court nominated evaluator assesses the case after it has been filed and enlightens the parties on the durabilities and shortcomings of the case.
• MEDIATION: During mediation, a third company called a mediator assists parties to decide their disagreement. Mediation is private and does not bind parties. They can go to judiciary if mediation flunks.
• MINI-TRIAL: In a mini- trial, the parties immerse lawyers to assert using a truncated edition of their case before. A council of envoys selected by both parties. Mini-trials take place after the trial has undertaken.
• MED-ARB: Med-arb is a procedure of alternative dispute resolution that incorporates both mediation and arbitration. Mediation is endeavored at first and if mediation ceases to function the disagreement is suggested to arbitration.
• NEGOTIATION: Negotiation takes place when parties settle their conflict through back-and-forth and without an impersonal third party.
• SUMMARY JURY TRIAL: Summary jury trials are administered after being decreed by bench. The trial is completed before an impartial jury who authorize a verdict. Courts ask parties to decide the conflict after listening to the decision.[9]

ADR and the Judicial System

In Konkan Railways Corp Ltd vs. Mehul Construction Co,[10] A three-judge bench of the Supreme Court decreed that the Chief Justice’s decree authorizing arbitrators in domestic arbitrations and the Chief Justice of India’s rule in international commercial arbitrations shall be deemed to have been made in his administrative capability, and the discontented party could question the decision under Section 16 of the Arbitration Act, for questioning the jurisdiction of the tribunal. In Goel Construction Co. Pvt. Ltd. v. ICAI O.M.P. (T) (Comm.), the Court found that the Arbitrator was under the opinion that he was not expected to disclose the other acceptable facets of the Act’s Sixth Schedule. Likewise, the Court inferred that submission with the major requirements of the said Schedule is inadequate, and ruled the Arbitrator to furnish full acknowledgment in accord with the Act’s Sixth Schedule.[11] In Rajasthan State Road Transport Corporation v. Krishna Kant,[12] the Supreme Court observed:

“The policy of law emerging from Industrial Disputes Act and its sister enactments is to provide an alternative dispute-resolution mechanism to the workmen, a mechanism which is speedy, inexpensive, informal and unencumbered by the plethora of procedural laws and appeals upon appeals and revisions applicable to civil courts. Indeed, the powers of the courts and tribunals under the Industrial Disputes Act are far more extensive in the sense that they can grant such relief as they think appropriate in the circumstances for putting an end to an industrial dispute.”[13]

ADR is Not for Everyone

Although ADR procedures proceed to thrive in rage, they are not the promising outcome for every conflict.[14] Mediators and arbitrators mostly charge a fee for their assistance, and if the parties perceive in advance that there is no likelihood of resolving the case, ADR only expends time and resources.[15] In negotiation, one party might have an unreasonable benefit and can scare the other into an unstable settlement.[16] ADR may be a quicker substitute to trial, but some violent or hazardous factors compel even more sudden court action, such as a restraining order.[17] In these examples, the courts are the more decent venue.

Some parties prevent ADR because they prefer to set legal precedent for prospective conflicts.[18] ADR furnishes a one-time treatment that is only binding, if at all, on the existing parties for the recent conflict. In contrast, court judgments become statute, which regulates, or prevents, future conflicts regardless of the parties comprised[19]. Take the airport enterprise for example. Landowners once occupied all of the airspace above their property, from the floor up to the “heavens.”[20] Then came the innovation of the aircraft.

As flyings came to be more widespread, inhabitants near terminals became stymied with aircraft flying low over their estate.[21] During WWII, one landowner charged the U.S. Government for authorizing military airplane to strike his airspace.[22] The Supreme Court of the United States understood the case and proclaimed that landowners own merely the immediate airspace above their territory.[23] That judgment altered the longstanding statute and ridded the atmospheres for commercial aviation. Had the Government solely resolved the course, the door to prosecution would have stayed open for thousands of different displeased landowners.

Despite the unusual abnormalities, ADR persists the outcome of intention for maximum legal conflicts. Even as the volume of pending civil cases begins again to surge, ADR procedures have assisted lessen the cumulative volume of lawsuits stopping in case by more than 60 percent since the 1980s. ADR saves parties duration and money. It maintains court personnel from burning out. Hindering some important financial or social shift, ADR’s popularity will apt begin again to thrive, and the Hollywood impression of “trial” may come to be a quirk of the history.[24]

Conclusion

There are numerous other dispute resolution methods, like med-arb, mini trial, summary jury trial etc. but arbitration, mediation and Lok Adalats and so on are the most generally used techniques of ADR in India. for the duration of the sector, ADR has been slowly becoming the popular preference for parties, however India nonetheless relies loads on litigation. but, with the improvement of these ADR methods, and to enhance get right of entry to justice, ADR is being seen as a necessity. felony popularity ought to take delivery of to all ADR methods along with negotiation as they’re feasible and handy., and it would assist to ease the load of the courts.

About the Author: Aafreen Manzoor is a 5^th year student at Central University of Kashmir.

Note: The views in this article are personal only.

References

Websites and Blogs:

• Alternative Dispute Resolution, (Science Direct), https://www.sciencedirect.com/topics/economics-econometrics-and-finance/alternative-dispute-resolution, accessed 02 June 22.
• What Is Alternative Dispute Resolution?, (Find Law, October 08, 2020), https://www.findlaw.com/hirealawyer/choosing-the-right-lawyer/alternative-dispute-resolution.html, accessed 02 June 22.
• Kazam, Alternative Dispute Resolution (ADR), (LegalServiceIndia), https://www.legalserviceindia.com/legal/article-1678-alternative-dispute-resolution-adr-.html, accessed 02 June 22.
• Ishaan Banerjee, An Introduction to Alternative Dispute Resolution, (iPleaders, March 02, 2020), https://www.google.com/amp/s/blog.ipleaders.in/an-introduction-to-alternative-dispute-resolution/%3famp=1, accessed 02 June 22.
• Sujay, ADR Mechanism in India, (Legal Service India), http://www.legalservicesindia.com/article/224/ADR-Mechanism-in-India.html, accessed 02 June 22.
• Rishabh Saxena, All you need to know about Alternative Dispute Resolution (ADR), (iPleaders,, May 09, 2017), https://www.google.com/amp/s/blog.ipleaders.in/adr-alternative-dispute-resolution/%3famp=1, accessed 02 June 22.
• Brinda G. Lashkari, NEED FOR AN ALTERNATIVE DISPUTE RESOLUTION IN INDIA, (Racolb Legal, August 2016), http://racolblegal.com/need-for-an-alternative-dispute-resolution-in-india/, accessed 02 June 22.
• WHAT ARE THE DIFFERENT TYPES OF ALTERNATIVE DISPUTE RESOLUTION (ADR)?, (Sbemp), https://sbemp.com/different-types-alternative-dispute-resolution/, accessed 02 June 22.
• Aparna Jayakumar, Growing need for ADR in light of some recent notable case laws, (iPleaders, August 10, 2021), https://www.google.com/amp/s/blog.ipleaders.in/growing-need-adr-light-recent-notable-case-laws/%3famp=1, accessed02 June 22.
• Alternative Dispute Resolution (ADR) in modern India, (AdvocateKhoj, https://www.advocatekhoj.com/library/lawreports/justicedispensation/3.php?Title=Need%20for%20Justice%20-%20dispensation%20through%20ADR%20etc.&STitle=Alternative%20Dispute%20Resolution%20(ADR)%20in%20modern%20India%20(1), accessed 02 June 22.
• http://asauk.org.uk/wp-content/uploads/2013/08/Why-use-ADR.pdf
• https://www.utcourts.gov/mediation/faq.html#cost.
• http://asauk.org.uk/wp-content/uploads/2013/08/Why-use-ADR.pdf
• http://www.northwestern.edu/newscenter/stories/2009/03/burnstrial.html

Journal Articles

• Sprankling; Coletta, Property: A Modern Approach, 2^nd, p. 133.

Cases

• Konkan Railways Corp Ltd Vs. Mehul Construction Co, AIR 2000.
• Rajasthan State Road Transport Corporation v. Krishna Kant, 1995 (5) SCC 75.

End Notes

[1] Alternative Dispute Resolution, (Science Direct), https://www.sciencedirect.com/topics/economics-econometrics-and-finance/alternative-dispute-resolution, accessed 02 June 22.

[2] What Is Alternative Dispute Resolution?, (Find Law, October 08, 2020), https://www.findlaw.com/hirealawyer/choosing-the-right-lawyer/alternative-dispute-resolution.html, accessed 02 June 22.

[3] Kazam, Alternative Dispute Resolution (ADR), (LegalServiceIndia), https://www.legalserviceindia.com/legal/article-1678-alternative-dispute-resolution-adr-.html, accessed 02 June 22.

[4] Ibid.

[5] Ishaan Banerjee, An Introduction to Alternative Dispute Resolution, (iPleaders, March 02, 2020), https://www.google.com/amp/s/blog.ipleaders.in/an-introduction-to-alternative-dispute-resolution/%3famp=1, accessed 02 June 22.

[6] Sujay, ADR Mechanism in India, (Legal Service India), http://www.legalservicesindia.com/article/224/ADR-Mechanism-in-India.html, accessed 02 June 22.

[7] Rishabh Saxena, All you need to know about Alternative Dispute Resolution (ADR), (iPleaders,, May 09, 2017), https://www.google.com/amp/s/blog.ipleaders.in/adr-alternative-dispute-resolution/%3famp=1, accessed 02 June 22.

[8] Brinda G. Lashkari, NEED FOR AN ALTERNATIVE DISPUTE RESOLUTION IN INDIA, (Racolb Legal, August 2016), http://racolblegal.com/need-for-an-alternative-dispute-resolution-in-india/, accessed 02 June 22.

[9] WHAT ARE THE DIFFERENT TYPES OF ALTERNATIVE DISPUTE RESOLUTION (ADR)?, (Sbemp), https://sbemp.com/different-types-alternative-dispute-resolution/, accessed 02 June 22.

[10] AIR 2000

[11] Aparna Jayakumar, Growing need for ADR in light of some recent notable case laws, (iPleaders, August 10, 2021), https://www.google.com/amp/s/blog.ipleaders.in/growing-need-adr-light-recent-notable-case-laws/%3famp=1, accessed02 June 22.

[12] 1995 (5) SCC 75.

[13] Alternative Dispute Resolution (ADR) in modern India, (AdvocateKhoj, https://www.advocatekhoj.com/library/lawreports/justicedispensation/3.php?Title=Need%20for%20Justice%20-%20dispensation%20through%20ADR%20etc.&STitle=Alternative%20Dispute%20Resolution%20(ADR)%20in%20modern%20India%20(1), accessed 02 June 22.

[14] http://asauk.org.uk/wp-content/uploads/2013/08/Why-use-ADR.pdf

[15] https://www.utcourts.gov/mediation/faq.html#cost.

[16] http://asauk.org.uk/wp-content/uploads/2013/08/Why-use-ADR.pdf

[17] Ibid.

[18] Ibid.

[19] Ibid.

[20] Sprankling; Coletta, Property: A Modern Approach, 2^nd Ed., p. 133.

[21] Ibid.

[22] Supra note 20, p. 134.

[23] Supra note 20, p. 137.

[24] http://www.northwestern.edu/newscenter/stories/2009/03/burnstrial.html.