Alternative Dispute Resolution

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 By Satya Vrat Yadav, College of Legal Studies, UPES

Header-ADR

 

Why ADR?

Today, more than three and half  crores (As per the Ministry of Law and Justice press release 66,569 cases are pending in Supreme Court, 45,82,074 cases pending in High Court and 3,02,40,185 are pending in subordinate courts as on 31.1.2013) of case pending in our courts, that means at least seven to eight crore people are directly involved in litigation that forms a healthy percent of our population, and we have only 13,500 judges at lower court level and about 700 judges at various High Court and 29 judges in Supreme Court of India. Indian Justice Administration system is “adversarial” in nature in which there are two parties and they are on face to face with each other in the Court, and it has been seen that no legal issues are involved in most of the cases put before the respected courts rather its ego which come in between and it ultimately ends in blood amongst the litigants, and hatretism.

At present, we are seeing that everyone takes resort to strikes, road blocks, and other modes of disobedience, this situation does not arise over night, rather it’s a consistent development, people are slowly losing their faith in judicial system also, as they end up getting justice at a very later stage, which is too late, as justice delayed is justice denied.

The Legal Services Authorities Act, 1987 has also been amended from time to time to endorse use of ADR methods. Section89 of the Code of Civil Procedure as amended in 2002 has introduced conciliation, mediation and pre-trial settlement methodologies for effective resolution of disputes. Mediation, Conciliation, Negotiation, Mini-Trial, Consumer Forums, Lok Adalats and Banking Ombudsman have already been accepted and recognized as effective Alternative dispute resolution methodologies.

Alternative Dispute Resolution has greatly expanded over the last several years to include many areas in addition to the traditional commercial dispute in the form of arbitration; mediation has become an important first step in the dispute resolution process. Arbitrators and mediators have an important role in resolving disputes. Mediators act as neutrals to reconcile the parties’ differences before proceeding to arbitration or litigation. Arbitrators act as neutral third parties to hear the evidence and decide the case. Arbitration can be binding or non-binding.

Malimath Committee:

This committee was headed by Hon’ble Mr. Justice V.S. Malimath, the two other members being Hon’ble Mr. Justice P.D. Desai and Hon’ble Dr. Justice A.S.Anand. The Indian judicial system has been stretched almost to a breaking point right from the Apex court to the lowest subordinate courts. The Malimath Committee which is also known as the Arrears committee, undertook a comprehensive review of the working of the court system, particularly all aspects of arrears and Law’s delay and made various useful recommendations for reducing litigation and making justice readily accessible to the people at the minimum cost of time and money.

The Malimath Committee underlined the need for ‘alternative dispute resolution mechanism’ such as mediation, conciliation, arbitration, Lok Adalats etc. as an alternative to the conventional court litigation.

What is ADR?

Alternate Dispute Resolution is the Conventional Courts used, formal system of redressal applying various rules of law, as we have erstwhile mentioned that our system is adversial. It has introduced a new mechanism of dispute resolution that is non Adversarial. A dispute is basically ‘lis inter parties’ and the justice dispensation system in India has found an alternative to Adversarial litigation in the form of ADR Mechanism in which two parties contest their case and one party wins and the other party loses, but in case of alternate dispute resolution (Section 89 – Code of Civil Procedure), which can be categorized in four broad heads which are-

1. Arbitration;

2. Mediation;

3. Conciliation;

4. Judicial settlement including settlement through Lok Adalats

ADR is not something new to us; it is such a system which India is following for ages, in form of panchayats etc. This system of panchayats was self-sufficient, with every village having panchayat, with powerful authority for redressing the disputes. The best part of ADR is that since both parties come face to face and they work out the modalities and reach to an amicable solution, there is no likelihood of winning or losing the case, i.e. it’s a win – win situation and thereafter no appeal, and thus it reduces the burden of appellant courts as well, the Arbitration and Conciliation Act, 1996 provides for Arbitration and the award given by the arbitrator is deemed to be a decree.

The labor legislation has already incorporated conciliation and mediation system in their enactments, to have an amicable solution in case of tussle between the labor and the management. The conventional courts are already overburdened with loads of cases, and at least a sizable number of cases can be disposed of by way of ADR. The CPC envisages for use of ADR in section 89 in amended section as mandatory for court to refer the dispute after the issues are framed for settlement of disputes outside the Court (Clause 7 of the CPC Amendment (Bill), 1999). The Law Commission of India in its 129th Report recommended for the Alternate modes of Dispute Redressal to be obligatory on the courts after framing of issues. It is only after the parties fail to get their disputes settled through any one of the alternate dispute resolution methods that the suit shall go further in the court where it was filed.

The purpose of this special provision seems to help the litigant to settle his dispute outside the Court instead of going through elaborate process in the court trial. This is a special procedure for settling the dispute outside the courts by a simpler and quicker method. The litigants on the institution of the suit or proceedings may request the Court to refer the disputes and if the court feels that there exists any element of settlement which may be acceptable to the parties; then court may refer, matter to any of the forums.

In fact new rules in Order X were inserted in consequence to the insertion of the sub section (1) of section 89. These new rules namely 1A, 1B and 1C have been inserted by the Amending Act. The settlement can be made by adopting any of the modes specified in the section 89 of the CPC inserted by the Amendment Act. As per the Rule 1A the parties to the suit are given an option for settlement of the dispute outside court. When the parties have exercised their option it shall fix the date of appearance before such person as may be opted by the parties. As per the Rule 1-B the parties are required to appear before such forum opted by them. Rule 1C provides for the Presiding Officer of the Forum to refer the matter again to the Court in case he feels that in the interest of justice he should not proceed with the matter.

Conclusion

On the basis of above analysis, ADR is the best and most effective solution to reduce the pendency of cases in various courts of our country. Let’s not forget that the ADR is more effective as it  brings about harmonious relationship between both the parties unlike in the conventional courts, thus it is permanent solution to any dispute, as it don’t lead to appeal or revision, and hence reducing the burden of appellate courts as well and also it saves valuable time and energy of the courts which can be utilized erstwhile in other matters pending before court and it renders justice on time (Justice delayed is justice denied, but ADR saves time and timely judgment is possible). Despite many advantages of using Alternative dispute resolution mechanisms, our society has been reluctant to give it its due recognition. The ADR practitioner therefore acts like a healer of conflicts rather than a combatant, which are very much similar to the Panchayat system we have in our villages. The resolution of disputes through ADR is so effective and widely accepted that Courts have more often recognized them. It avoids protracted litigation and is based on the ground realities verified in person by the adjudicators and the award is fair and honest settlement of doubtful claims based on legal and moral grounds.