It has been rightly said: “An effective judicial system requires not only that just results be reached but that they be reached swifty.” But the currently available infrastructure of courts in India is not adequate to settle the growing litigation within a reasonable time. Thus, there is a chain reaction of litigation process and civil cases may even give rise to criminal cases. Speedy disposal of cases and delivery of quality justice is an enduring agenda for all who are concerned with administration of justice.

In this context, there is an imminent need to supplement the current infrastructure of courts by means of Alternative Disputes Resolution (ADR) mechanisms. Apart from bringing efficiency in the working of the judiciary, measures are being taken all over the world for availing ADR systems for resolving pending disputes as well as at pre-litigation stage. Efforts towards ADR have met with considerable success and good results elsewhere in the world, especially in the litigation- heavy India.

What is Alternative Disputes Resolutions System?[1]

ADR is not a recent phenomenon as the concept of parties settling their disputes themselves or with the help of third party, is very well-known to ancient India. Disputes were peacefully decided by the intervention of Kulas (family assemblies), Shreni (guilds of men of similar occupation), Parishad, etc.

The primary object of ADR movement is avoidance of vexation, expense and delay and promotion of the ideal of “access to justice” for all. ADR system seeks to provide cheap, simple, quick and accessible justice. ADR is a process distinct from normal judicial process.

Under this, disputes are settled with the assistance of a third party, where proceedings are simple and are conducted, by and large, in the manner agreed to by the parties. ADR stimulates to resolve the disputes expeditiously with less expenditure of time, talent and money with the decision-making process leading to substantial justice maintaining confidentiality of the subject matter. ADR mechanism take place through various types. Mediation, Arbitration, Negotiation etc are some forms of ADR mechanism.

So, precisely saying, ADR aims to provide justice that not only resolves dispute but also harmonises the relations between the parties without going to courts.

What are the functions of ADR?[2]

ADR mechanism has different types of functions which help people to resolve their issue in a much better way. The functions of ADR are as follows:

• rather there is a mutually beneficial arrangement for both the parties.

TYPES OF ALTERNATIVE DISPUTE RESOLUTION

Various types or mechanism of alternative disputes resolution is been used across the globe. Mechanism like Arbitration, Mediation, Lok Adalat are some most commonly used methods. ADR can be broadly classified into two categories; court- annexed options in which cases that meet some specified criteria are involuntarily assigned includes mediation, conciliation and community-based dispute resolution mechanism it offers constructive processes for resolving differences and conflicts between individuals, groups and organizations which includes Lok-Adalat.

Following are certain types of ADR mechanism which are generally used to resolve disputes:

• Arbitration
• Mediation
• Conciliation/ Reconciliation
• Negotiation
• Lok Adalat

Mediation

The most popular form of ADR is mediation. Mediation is a process of dispute resolution focuses on effective communication and negotiation skills. The mediator role is to help the parties in communicating and negotiating more effectively, thereby enhancing their ability to reach a decision. It is not the mediator’s role to adjudicate the issues in dispute and indeed the mediator has no right to do so. Mediation is not a process to force compromise, although compromise is an element of the process.

Each party’s limitations are respected and a party is only expected to make a change in its approach to the problem if it becomes convinced that it is reasonable to do so. Today mediation is the most fast-growing form of ADR. It is being used in almost every conceivable type of dispute resolution and comes in different forms. The process has also been effectively adapted for multiple party dispute resolution with tremendous success. In an attempt to capitalize on the success rates, legislation is slowly being amended to include provisions for mediation of disputes.

The advantages of mediation are many. Some of the benefits mediations are like it’s not that expensive, it focused on resolving the problem quickly and resolution is created by parties themselves.[3]

Arbitration

Arbitration is a process for the resolution of disputes on a private basis through the appointment of an arbitrator, an independent, neutral third person who hears and considers the qualities of the dispute and renders a final and binding decision called an award. The process is similar to the litigation process as it involves adjudication, however, the parties select their arbitrator and the manner in which the arbitration will proceed. For example, if the dispute is fairly straightforward and does not involve any factual questions, the parties may agree to waive a formal hearing and provide the arbitrator with written submissions and documentation only, called a document only arbitration, whereas in other cases the parties may wish a full hearing. Therefore, the parties create their own adjudicatory forum which is tailor made to the particular needs of the parties and the nature of the dispute.

The advantages of arbitration over court adjudication includes that the parties can choose an arbitrator who has expert knowledge of the law, business or trade in which the dispute has arisen. Arbitration is not expensive if the process is kept simple. Arbitration can be arranged quickly and does not take time as long as litigation.[4]

Conciliation
Conciliation as a form of alternative dispute resolution is a technique in which the parties to the dispute use a conciliator who meets the parties separately so as to resolve their differences. The way they do this is by is by lowering tensions, improving communications, interpretation of issues and bringing a negotiable instrument.

This form of ADR is considered to be a voluntary proceeding where the parties to the dispute are free to agree and attempt to resolve their dispute by this method. Such form of ADR is flexible as it allows the parties to define the time, structure and the content of the conciliation proceedings. Conciliation, being a voluntary process involves a conciliator who will be a trained and qualified neutral and facilitates negotiations between the parties by getting himself involved in discussions and listening to both the sides and to arrive at a mutually acceptable agreement. Basically, a conciliator does not decide for the parties but strives to support them and aiding them to find a solution which will be compatible to both the parties.[5]

Negotiation
Negotiation is a dialogue intended to resolve disputes, to produce an agreement upon courses of action, to bargain for individual or collective advantage, or to craft outcomes to satisfy various interests. It is the primary method of alternative dispute resolution.

Negotiation occurs in business, non-profit organisations, government branches, legal proceedings among nations and in personal situations such as marriage, divorce, parenting and everyday life. There are negotiators which are professionally involved and work as diplomats, legislators or brokers.[6]

Lok Adalat

The Lok Adalat system established by the National Legal Services Authority Act of 1987 is a distinctively Indian alternative dispute resolution mechanism, in contrast to the more generic approach used by the Arbitration and Conciliation Act of 1996.

Its literal translation is “people’s court.” Village elders have always played an important role in mediating conflicts in India. For the purpose of exercising jurisdiction as they see proper, the State Authority, District Authority, Supreme Court Legal Services Committee, High Court Legal Services Committee, or Taluk Legal Services Committee will hold mock courts (called Lok Adalat) on a periodic basis. People with backgrounds in law, social activism, or judicial retirement often preside over these. It does not have authority over cases involving crimes that cannot be “compound.”

If both parties agree, a case that is already proceeding in a traditional court system might be moved to a Lok Adalat. If a party petitions the court and the court, after affording the opposing party an opportunity to be heard, believes there is a likelihood of settlement, the case may be referred to a Lok Adalat.

Lok Adalat emphasize cooperative problem solving. When negotiations fail, the case must be brought before a judge again. If, however, the parties are able to settle on an agreement, the award will be final and legally binding. A civil court has issued an order, and it must be obeyed. Because it is a judgement by consent, the award is final and not subject to appeal under Article 226.

A Lok Adalat’s proceedings are legally binding, and each Lok Adalat is treated as an equivalent of a Civil Court. The government-established Lok Adalat (people’s courts) uses mediation and consensus-building to resolve disputes. A sitting or retired judge act as chairman of the Lok Adalat, which also includes two other members who are typically a lawyer and a social worker. You won’t have to pay anything to the court. If a lawsuit is filed in ordinary court and later settled at the Lok Adalat, the filing money will be reimbursed to the plaintiff. The Lok Adalat does not closely adhere to the procedure norms and the Evidence Act when deciding the validity of a claim.

When it comes to monetary claims, Lok Adalat is extremely efficient. Since there is usually room for negotiation and compromise in matrimonial, damage, and partition proceedings, Lok Adalat is also an effective forum for resolving these types of disputes. The public is fortunate to have access to Lok Adalat, a forum for the swift and inexpensive resolution of legal problems. Due to the lack of court fees and strict procedural requirements (such as those found in the Civil Procedure Code or the Evidence Act), the process can be completed in a short amount of time. Unlike in traditional courts, the parties involved can speak freely with the judge.[7]

ADVANTAGES OF ALTERNATIVE DISPUTE RESOLUTION

Justice Warren Burger, the former CJI of American Supreme court had observed: “the harsh truth is that we may be on our way to a society overrun by hordes of lawyers, hungry as locusts, and bridges to judges in number never before contemplated. The notion that ordinary people want black-robed judges, well-dressed lawyers, fine panelled court rooms as the setting to resolve their disputes, is not correct. People with legal problems like people with pain, want relief and they want it as quickly and inexpensively as possible”[8]

The benefits or advantages that can be accomplished by the ADR system are summed up here briefly:

Time saved with ADR mechanism: Generally, court hearings take a long time to be arranged, leading to lengthy waits for any issues to be resolved. Conversely, an informal mediation can take place far quicker, increasing the likelihood of a quick resolution.

Takes into account the needs of both parties: Court is a far more rigid institution, and tends to resolve disputes in line with legal legislation. However, ADR is more flexible and responsive to the individual needs of those involved. Therefore, the outcome is more likely to be reflective of the dispute.

More likely to preserve existing relationships: the needs of both parties are taken into account; the outcome is more likely to suit the needs of everyone involved. This can help preserve existing customer relationships somewhat, which can be useful if the relationship is expected to continue. For example, they’ve scheduled additional work from you, before a dispute arose.

Confidentiality: Such processes occur behind the privacy of closed doors, not within the public sphere of a courtroom. Therefore, disputes can be dealt with in a confidential manner.[9]

Faster resolution: The court system is overloaded. It cannot hold a trial for every lawsuit that gets filed. As a result, it can take several years for a legal case to go to trial. One of the benefits of ADR is that resolution is fast. A settlement or arbitration award can be issued within a few weeks or months of filing a lawsuit.

Lower cost: The discovery process for going to trial can lead to an exorbitant total cost that includes court reporter fees, attorney fees, and the expenses associated with printing and mailing documents. More importantly, a long, drawn-out court trial can require jurors, witnesses, and the parties themselves to remain off of work for weeks. With ADR, the process is shorter, and time is money.

More flexibility: The ADR process is less rigid. Unlike a trial date that can vary because of the backlog, ADR can be scheduled at any time. This not only provides greater flexibility but also helps speed up the resolution of the conflict.[10]

No biasness: A neutral third party is selected to preside over all cases that go through ADR. The neutral third party should have no connections to anyone involved in the lawsuit and no interest in the outcome of the dispute.

Enforceability of Awards: The United Nations Convention for the Recognition and Enforcement of Foreign Arbitral Awards of 1958, known as the New York Convention, generally provides for the recognition of arbitral awards on par with domestic court judgments without review on the merits. This greatly facilitates the enforcement of awards across borders.[11]

DISADVANTAGES OF ALTERNATIVE DISPUTE RESOLUTION

There are undoubtedly many benefits to alternative dispute resolution. However, it is also important to note alternative dispute resolution’s disadvantages. Following are the drawbacks of alternative dispute resolution :

Surrenders Appeal: Unlike litigation, where a party may appeal a decision after it is made, alternative dispute resolution processes limit the ability of the parties to achieve a different outcome after the process is resolved and the decision is made. This can undercut the accessibility of the process for some.

Increases Spending: There are more out-of-pocket costs at the beginning of the alternative dispute resolution process that would not be the case in litigation. Parties will have to pay for a neutral, the space for the process, and many other costs. This is why it is essential to weigh the costs of the process with the costs at stake.

Avoids Binding: Litigation results in a binding decision for the parties. Non-binding can be an advantage of alternative dispute resolution. It can also be a pitfall because the parties may go through the process and not reach a resolution, putting them back at square one.

Encourages Compromise: The collaborative nature of alternative dispute resolution requires that the parties come to the table with the intent to compromise their position in some way. While this may be a quick result, it may not be the best possible result. A party must have a stellar understanding of what they are entitled to when entering these processes.

Stalls Process: Because the process is non-binding, some parties will attempt to use alternative dispute resolution as a tactic to stall the proceedings for some time. This can be to buy more time to gather evidence or to cause the plaintiff to wait longer for their award. Spotting when someone is going into a dispute resolution process without the intent of attempting to settle is important when considering the process.[12]

There is no guaranteed resolution: The alternative resolution process does not always lead to a resolution. This means that the parties could invest time and money in trying to resolve the dispute out of court and still end up having to proceed with litigation and trial before a judge and jury.

Limit on Awards: There is no equivalent of s.66 of the Arbitration Act 1996 (which provides that an award made by the tribunal pursuant to an arbitration agreement may be enforced in the same manner as a judgment or order of the court to the same effect) enabling ADR awards to be enforced as if they were court judgment.[13] However, the awards are not so easily enforceable. Arbitrations mostly resolve disputes that involve money. They cannot issue orders compelling one party to do something, or refrain from doing something; hence, they cannot give injunctions.

ADR is not for all cases: Alternative dispute resolution is not appropriate where a client needs an injunction, where there is no dispute to resolve and where the client needs a ruling on a point of law.[14]

Uneven Negotiating Command: Power imbalances in alternative dispute resolution can cause issues with the neutrality of the process. For example, if one party is more powerful, the other will often feel like they are working to appease them rather than meet in the middle. In convinced situations, one side is capable to have power over the other. For that reason, a noteworthy discrepancy of power exists.

Enforceability: Usually, ADR is not lawfully compulsory making any award complicated to implement Legal arbitration has some kind of course of action for internal appeals, which enables the assessment as an obligatory and only issue to the assessment of Court.

Required Court Action: The arbitrator’s verdict can necessitate a court action if one of the parties declines to acknowledge the arbitrator’s conclusion. This would not only generate pandemonium but also an obligatory review by the court. Thus, ADR occasionally elevates the question of biasness of the arbitrator’s pronouncement. Also, there is a very flawed panorama for judicial assessment of an arbitrator’s decision.[15]

CONCLUSION

Alternative dispute resolution is the use of methods to resolve a dispute without resorting to legal action. They usually involve the use of a neutral third party and can help find a creative solution to resolve an issue.[16] ADR mechanism are of different type it can range from mediation, arbitration, negotiation to Lok Adalat, conciliation etc. Different type of methods is used for different needs for example, National Lok Adalat is conducted every three months whereas mediation process occur with help of a appointed mediator.

ADR processes have a number of advantages. They are flexible, cost-efficient, time-effective, and give the parties more control over the process and the results. Parties who resolve their disputes through ADR are generally more satisfied because they may directly participate in working out the terms of their settlement. When appropriate settlement processes are available, many disputes can be resolved more efficiently and with greater satisfaction to all parties. Lengthy, costly litigation can be avoided, divisiveness minimized, and productive results achieved.[17]

There are, of course, circumstances in which court litigation is preferable to ADR. For example, ADR’s consensual nature makes it less appropriate if one of the two parties is extremely uncooperative, which may occur in the context of an extra-contractual infringement dispute. In addition, a court judgment will be preferable if, in order to clarify its rights, a party seeks to establish a public legal precedent rather than an award that is limited to the relationship between the parties. In any event, it is important that potential parties, and their advisors are aware of their dispute resolution options in order to be able to choose the procedure that best fits their needs.[18]

How to make ADR mechanisms more viable?

We cannot stop the inflow of cases because the doors of justice cannot be closed. But there is a dire need to increase the outflow either by strengthening (both qualitatively and quantitatively) the capacity of the existing system or by way of finding some additional outlets.

We should aim to achieve prompt and more appropriate resolution of legal problems and disputes by:[19]

• Mandatory reference to an ADR forum for the people and case involved.
• Case management by Judges which includes identifying the issues in the case; summarily disposing of some issues and deciding in which order other issues are to be resolved; fixing timetables for the parties to take particular steps in the case; and limiting disclosure and expert evidence.
• Increasing opportunities of advice and assistance to help people resolve their disputes speedily and more effectively
• Increasing the opportunities for people involved in court cases to settle their disputes out of court; and
• Reducing delays in resolving those disputes that need to be decided by the courts.

To implement the noble ideas and to ensure the benefits of ADR to common people, the four essential players i.e., government, bench, bar, litigants are required to coordinate and work as a whole system. Consistent efforts have to be made to make the ADR mechanism better and for parties to realise that it is in their own interest to take advantage of ADR.

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[1] What is ADR available at: https://www.jusip.in/role-of-alternate-dispute-resolution-adr/ (last visited on July 11, 2023).

[2] Functions of ADR available at: https://ww2.nycourts.gov/ip/adr/What_Is_ADR. (last visited on July 11, 2023).

[3] Mediation definition available at: https://www.lawyersnjurists.com/article/advantages-disadvantages-alternative-dispute-resolution/ (last visited on July 10, 2023).

[4] Arbitration definition available at: https://www.lawyersnjurists.com/article/advantages-disadvantages-alternative-dispute-resolution/ (last visited on July 10, 2023).

[5] Conciliation available at: https://legalaffairs.gov.in/sites/default/files/arbitration-and-mediation. (last visited on July 10, 2023).

[6] Alternative Dispute Resolution available at: https://www.legalserviceindia.com/legal/article-1678-alternative-dispute-resolution-adr-.html (last visited on July 10, 2023).

[7] ADR mechanism available at: https://primelegal.in/2022/10/23/alternative-dispute-resolution-mechanism-in-india/ (last visited on July 10, 2023).

[8] Editorial, “Burger Warns About a Society Overrun by Lawyers” The New York Times, May 05, 1977.

[9] Benefits of alternative dispute resolution available at: https://www.thecpa.co.uk/news/benefits-of-alternative-dispute-resolution/ (last visited on July 12, 2023).

[10] Advantages of alternative dispute resolution available at: https://btmediation.com/advantages-of-alternative-dispute-resolution/ (last visited on July 12, 2023).

[11] The United Nations Convention for the Recognition and Enforcement of Foreign Arbitral Awards, 1958.

[12] Advantages and Disadvantages of ADR available at: https://www.adrtimes.com/advantages-and-disadvantages-of-adr/ (last visited on July 14, 2023)

[13] The Arbitration and Conciliation Act, 1996 (Act 26 of 1996), s.66.

[14] Disadvantages of ADR available at: https://lawdit.co.uk/readingroom/adr-disadvantages (last visited on July 14, 2023)

[15] Limitations of ADR available at: https://viamediationcentre.org/readnews/NjQx/LIMITATIONS-OF-ALTERNATIVE-DISPUTE-RESOLUTION (last visited on July 14, 2023)

[16] Benefits of ADR available at: https://www.thecpa.co.uk/news/benefits-of-alternative-dispute-resolution/ (last visited on July 16, 2023)

[17] Limitations of ADR available at:https://www.courts.state.hi.us/services/alternative_dispute/advantages_of_adr (last visited on July 16, 2023)

[18] Advantages available at: https://www.wipo.int/amc/en/center/advantages (last visited on July 16, 2023)

[19] Rajasthan State Legal Service Authority, Legal Aid Services and Future Road Map Book (Rajasthan High Court Premises, Jaipur Bench, Jaipur)

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Author: Sara

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