“The spirit of the law, not its letter, is what gives life to justice.” Lord J. Earl Warren.
Although the Court System of India is one of the oldest in the entire globe, it is also widely acknowledged that it is becoming less effective at handling cases. Indian courts are overburdened with protracted unresolved issues. The situation is that there are backlogs of unsolved cases that continue to rise, and the problem is still far from being solved despite millions of instances.
Conflict Management via Alternative Dispute Resolution is a novel, less aggressive method of resolving legal disputes (ADR). A lawsuit is technically a “lis inter partes,” but the ADR Mechanism, a substitute for adversarial litigation, has been established by the Indian legal system.
Alternate Dispute Resolution in India
The number of lawsuits filed in Indian courts has dramatically increased in recent years, causing pendency and delays and highlighting the need for alternative conflict resolution methods. In response to these worries, the then-Indian Prime Minister and Chief Justice called a conference in New Delhi on December 4, 1993, where the Chief Ministers and Chief Justices of the States adopted a Resolution.
ADR is a non-adversarial method of resolving disputes that rely on cooperation to find the best outcome for all parties. Through innovative, cooperative negotiating, it offers the chance to “grow the pie” and satisfy the motives behind their requests.
TYPES OF ADR
An arbitral tribunal hears the dispute and issues a ruling (an “award”) that is mostly enforceable against the parties. It is less formal than a trial, and the rules of evidence are usually relaxed. In general, an arbitrator’s decision cannot be contested. Except for a few short-term remedies, there is not much room for the intervention of the courts in the arbitration procedure.
A non-binding process where a conciliator, a neutral third party, helps the parties to a dispute come to a mutually agreeable solution. A less formal variation of arbitration is conciliation. The proposals of the conciliator are open for acceptance or rejection by the parties. However, the settlement agreement put up by the conciliator will only be final and binding if both parties approve it.
Assisting the parties in their efforts to reach a mutually agreeable resolution of the problem is a neutral third party known as a “mediator” during mediation. The mediator helps the parties communicate so they can try to resolve the conflict on their own, rather than deciding on it. The parties are still in charge of the outcome.
A non-binding process in which the parties engage in conversation without the engagement of a third party to reach a negotiated resolution to the conflict. It is the alternative conflict resolution technique that is used the most. Negotiation happens in business, non-profit organisations, government agencies, courtrooms, between nations, and in ordinary life circumstances like marriage, divorce, and parenting.
STATUS OF ADR IN INDIA
- Legislative Support: – To promote out-of-court settlements, the Legal Services Authorities Act was passed in 1987. The new Arbitration and Conciliation Act was passed in 1996.
- Plea Negotiating Procedure: – In 2005, the Code of Criminal Procedure was updated to include the plea-bargaining Plea bargaining is best described as “pre-trial conversations between the accused and the prosecution during which the accused offers to plead guilty in exchange for specified concessions by the prosecution.”
- Lok Adalat, sometimes known as “people’s courts,” are informal settings that allow for negotiations in the presence of a judge and allow for the disposition of disputes without placing an undue focus on legal nuances. The Lok Adalat’s decision is final, enforceable against the parties, and cannot be challenged in court.
- The Arbitration and Conciliation (Amendment) Bill, 2021 was approved by the Lok Sabha in 2021 to prevent “fly-by-night operators” from abusing the law to get favourable awards through fraud. The Arbitration and Conciliation (Amendment) Ordinance, which was published in November 2020, will be replaced by the Bill.
- ODR: – Online Dispute Resolution. In its recently published research, The Future of Dispute Resolution, the NITI Aayog explores the history, importance, and current condition of online dispute resolution (ODR) in India. The term “ODR” refers to the use of ICT tools to help parties settle
ADVANTAGES OF ADR IN INDIA
- Unlike legal proceedings, most cases can be heard and decided in a single day. It leads to faster dispute resolution.
- It is more viable, economic and efficient. It is less expensive than the court system which causes a lot of money.
- The likelihood of repairing fences is improved when both sides can voice their complaints on the same page. It is quick and easy.
- The opportunity to ensure that a neutral consultant, arbiter, mediator, conciliator, or someone with specialised knowledge is present on the tribunal.
- In a setting free from the formalities of the legal system, conflicts are resolved through purely informal means.
- The adaptable procedure reduces the time, money, and stress associated with traditional trials.
SOLUTIONS WHICH CAN HELP IN INCREASING AWARENESS FOR ADR
ADR has been effective in reducing the pending cases at various levels of the judiciary. But it seems that people are unaware that these techniques are available. More information on these should be made available by the National and State Legal Services Authorities so that potential litigants will consider them as their first course of action. The future of dispute resolution is centred on ICT advancements and fresh concepts to make it effective and available to all facets of society. The use of ODR can decentralise conflict resolution in India and enable creatives from all walks of life to design specialised ODR procedures for speedy dispute settlement.
ADR is an excellent way to get justice. ADR’s success can be attributed to several factors, including its quickness, skill, accessibility, and capacity for amicable conflict resolution. Its lack of formality and adversarial tone also contributes to its effectiveness. By using the efficient steps provided in alternative dispute resolution, any conflict can be resolved. This is because, up until now, no practical solutions have been found using ADR techniques. For this reason, both parties may choose to use alternative dispute resolution (ADR) instead of just approaching to court directly. It is advised that both parties speak with an expert, typically a lawyer. The parties shall also consent to the enforceability of the judgement. ADR frequently produces positive experiences with clients because it concentrates on settling problems through dialogue and cooperation as opposed to litigation. By using ADR, parties can settle their disputes out of court. Tensions between the two sides will only increase as a result of every decision the court makes. This is because conciliation, in particular, an ADR technique, has a reputation for being rather coercive. There is no doubt that ADR is a simple method to seek justice for settling any future problems.
Author(s) Name: Abhivyakti Parashar (Symbiosis Law School, Pune)