- Alternative Dispute Resolution (ADR) is a mechanism of dispute resolution that is non-adversarial, i.e. working together co-operatively to reach the best resolution for everyone.
- ADR can be instrumental in reducing the burden of litigation on courts while delivering a well-rounded and satisfying experience for the parties involved.
- It provides the opportunity to “expand the pie” through creative, collaborative bargaining, and fulfill the interests driving their demands.
Need for ADR
- The system of dispensing justice in India has come under great stress mainly because of the huge pendency of cases in courts.
- In India, the number of cases filed in the courts has shown a tremendous increase in recent years resulting in pendency and delays underlining the need for ADR methods.
Types of ADR Mechanisms
ADR is generally classified into the following types:
Arbitration
- The dispute is submitted to an arbitral tribunal which makes a decision (an “award”) on the dispute that is mostly binding on the parties.
- It is less formal than a trial, and the rules of evidence are often relaxed.
- Generally, there is no right to appeal an arbitrator’s decision.
- Except for some interim measures, there is very little scope for judicial intervention in the arbitration process.
Conciliation
- A non-binding procedure in which an impartial third party, the conciliator, assists the parties to a dispute in reaching a mutually satisfactory agreed settlement of the dispute.
- Conciliation is a less formal form of arbitration.
- The parties are free to accept or reject the recommendations of the conciliator.
- However, if both parties accept the settlement document drawn by the conciliator, it shall be final and binding on both.
Mediation
- In mediation, an impartial person called a “mediator” helps the parties try to reach a mutually acceptable resolution of the dispute.
- The mediator does not decide the dispute but helps the parties communicate so they can try to settle the dispute themselves.
- Any person who undergoes the required 40 hours of training stipulated by the Mediation and Conciliation Project Committee of the Supreme Court (SC) can be a mediator.
- He also needs to have at least ten mediations resulting in a settlement and at least 20 mediations in all to be eligible to be accredited as a qualified mediator.
- Mediation leaves control of the outcome with the parties.
Negotiation
- A non-binding procedure in which discussions between the parties are initiated without the intervention of any third party with the object of arriving at a negotiated settlement to the dispute.
- It is the most common method of alternative dispute resolution.
- Negotiation occurs in business, non-profit organizations, government branches, legal proceedings, among nations, and in personal situations such as marriage, divorce, parenting, and everyday life.
Advantages of ADRs
- The resolution of disputes takes place usually in private – helping to maintain confidentiality.
- It is more viable, economical, and efficient.
- Procedural flexibility saves valuable time and money and the absence of stress from a conventional trial.
- This often results in creative solutions, sustainable outcomes, greater satisfaction, and improved relationships.
- The possibility of ensuring that specialized expertise is available on the tribunal in the person of the arbitrator, mediator, conciliator, or neutral adviser.
- Further, it offers greater direct control over the outcome.
Status of ADR in India
- Statutory Backing: The Legal Services Authorities Act was passed in 1987 to encourage out-of-court settlements, and the new Arbitration and Conciliation Act was enacted in 1996.
- Inclusion of Plea Bargaining: The procedure for plea-bargaining was included in the Code of Criminal Procedure in 2005. Plea-bargaining is best described as a “pre-trial negotiation between the accused and the prosecution during which the accused agrees to plead guilty in exchange for certain concessions by the prosecution.”
- Lok Adalats: Lok Adalat or “people’s court” comprises an informal setting that facilitates negotiations in the presence of a judicial officer wherein cases are dispensed without undue emphasis on legal technicalities. The order of the Lok-Adalat is final and binding on the parties and is not appealable in a court of law.
- Other Legal Provisions:
- In 2021, the Lok Sabha passed the Arbitration and Conciliation (Amendment) Bill, 2021 to check misuse by “fly-by-night operators” who take advantage of the law to get favorable awards by fraud.
- The Bill intends to replace the Arbitration and Conciliation (Amendment) ordinance issued in November 2020.
- More recently in July 2022, the Parliamentary Standing Committee on Law and Justice recommended substantial changes to the Mediation Bill, 2021.
- Online Dispute Resolution (ODR):
- The NITI Aayog in its recently released report – The Future of Dispute Resolution discusses the concept of Online Dispute Resolution (ODR) – its evolution, significance, and present status in India.
- ODR refers to the usage of ICT tools to enable parties to resolve their disputes.
- In its first phase, ODR shares its fundamentals with ADR Mechanisms of negotiation, mediation, and arbitration.
Way Forward
- ADR has proven successful in clearing the backlog of cases in various levels of the judiciary – Lok Adalats alone has disposed of more than 50 lakh cases every year on average in the last three years.
- However, there seems to be a lack of awareness about the availability of these mechanisms.
- The National and State Legal Services Authorities should disseminate more information regarding these, so they become the first option explored by potential litigants.
- The future of dispute resolution revolves around ICT innovations and new ideas to make dispute resolution efficient and accessible for every section of society.
- ODR has the potential to decentralize dispute resolution in India and empower innovators across communities to create targeted ODR processes to resolve disputes efficiently.
