AUTHOR’S NAME – Palak Kapoor, BALLB, Fourth Year.
INSTITUTION NAME – Chandigarh University, NH-05, Ludhiana Highway, Chandigarh State, Punjab.
INTRODUCTION:
Alternative Dispute resolution (ADR), is a technique of solving disputes without litigation it is also called out-of-court settlements. It encompasses all the techniques and processes that occur outside of any governmental authority. In the modern arena, it is preferred over litigation as it is advantageous and diverse in nature, it enables parties for the amicable settlement of disputes without the help of traditional court proceedings but is governed by certain rules and regulations depending upon the nature of the dispute. This article tries to establish a comprehensive framework of the ADR mechanism and how in certain cases litigation is preferred over any other alternative. ‘Conflict is inevitable but combat is optional’ as quoted by Max Lucado an American author meaning thereby as society is an assorted web of social relations, conflicts are unavoidable but attempts can be made to solve them amicably. Since the primitive era i.e. before the British period, the administration of justice was in the hands of a King, and the King’s court was treated as the highest court. It was only during the British period when the state came into the picture then the legal profession was formally recognized and was now administered by trained judges. Many were not literate enough to directly approach the court and due to this arrears of cases are escalating gradually and to some extent are neglected as well. A need was felt for prompt resolution of a dispute and alternative methods to solve the dispute. One of the alternative methods for the amicable settlement of dispute is Alternative Dispute Resolution (ADR). ADR is not a new concept in India, it can be traced back to ancient times as the panchayat system was one of the forms of ADR.[i] The ‘alternative’ in ADR refers to something other than the state-sponsored mechanism for adjudication of disputes. ADR has different nomenclatures like Additional Dispute Resolution (ADR), Amicable Dispute Resolution (ADR), Appropriate Dispute Resolution (ADR), and Assisted Dispute Resolution (ADR).
ADR- A Garland of Diverse Mechanism:
There are various techniques for ADR Arbitration, Mediation, Conciliation, and Negotiation. These are regulated by different mechanisms like Arbitration and Conciliation by the Arbitration and Conciliation Act 1996 and Mediation by Code of Civil Procedure 1908.
- Arbitration- It is a quasi-judicial process in which a neutral 3rd person acts as a private judge whose decision is binding upon the parties.[ii]
- Mediation- According to Black’s Law Dictionary, [iii]mediation is a non-binding dispute resolution involving a neutral 3rd party who tries to bring the disputing parties to reach a mutually agreeable solution.[iv]
- Conciliation- According to Black’s Law Dictionary,[v]Conciliation is a settlement of a dispute in an agreeable manner in which a neutral 3rd person meets with a party to a dispute and explores how the dispute might be resolved between the parties.[vi]
- Negotiation- It is a non-binding process in which discussions between the parties are intimated without the intervention of any 3rd party with the object of arriving at a negotiated settlement of the dispute.[vii]
Some other forms of out-of-court settlements are Gram Nyayalayas and Lok Adalat. Gram Nyayalayas are mobile village courts that are directed towards providing affordable justice to villagers.[viii] These Nyayalayas were administered by Nayadhikari, responsible for conducting trial proceedings in rural areas. Lok Adalat means [ix]the People’s Court which has the jurisdiction to determine the case and to arrive at a settlement of dispute between the parties in case a suit is pending before any court.
ADR – A Spectacular Approach for Dispute Resolution:
“ADR is a road that the parties must travel to arrive at their goal of a mutually satisfactory settlement” as quoted by Lon L-Fuller an American legal philosopher meaning thereby ADR is a voluntary process in which parties have to follow the rules and regulations prescribed in a contract made by the parties. It is a non-judicial process that is based on the principle of “JUSTICE DELAYED IS JUSTICE DENIED”. Due to globalization and industrialization, new contracts are taking place that help the parties to solve their disputes outside the courts. Several challenges such as the digital environment, financial cybercrime, etc need instantaneous assistance in solving disputes as speedy justice is a sine qua non of criminal jurisprudence. ADR is preferred over litigation as it accumulates numerous benefits. It provides speedy relief in the adjudication of cases, besides reducing the burden on the courts it has been utilized for several other reasons. It is economically beneficial to prefer ADR, as litigation is costly and not all the litigants are self-sufficient to meet the expenses. The methods employed in ADR are flexible and informal in nature which makes the justice system more comprehensive and efficient in contrast to the rigid and formal procedures of litigation. ADR encourages the direct participation of parties in the settlement of disputes which increases the chance of reaching a mutually agreeable situation generally referred to as a win-win situation which gives gain to both the parties rather than preferring litigation in which one or the other grudges are left over with the party.[x] ADR proceedings are confidential in nature which allows the parties to focus on the merits of the dispute rather than concerning its public impact.
Litigation as a Conventional Approach :
The most dispensable functions of a state are war and the administration of justice. Sometimes the disputes are inevitable and are of such a nature that cannot be resolved through communication or other alternatives like ADR then the only solution is to resort to the traditional mechanism of solving disputes i.e. Litigation.[xi] Litigation is still considered a powerful tool in dispute resolution because of its various advantages as it has lasting benefits in the formal process and therefore forms a public record with a clear outcome. Litigation provides a long form of precedents, which can be used by the courts in similar cases to adjudicate them.
Case laws:
Case- Afcon Infrastructure Ltd. V/s CV Construction Pvt. Ltd.[xii] In this case, SC has laid down the cases that can be resolved through the ADR Mechanism like cases related to commerce and contract, relating to family disputes, or some kind of contractual relationship, consumer disputes, and cases that are compoundable in nature.
Case- K.K Modi V/s K.N Modi[xiii]: This case deals with the validity of the arbitral clause in the agreement. An arbitral clause will be considered valid, only when it stipulates that the decision of the arbitral tribunal is binding rather than advisory upon the parties to an agreement.
Case- Kale V/s Deputy Director of Consolidation[xiv]: This case highlights the importance of Litigation in solving disputes among family members over property in India especially when the parties lack commitment to make it work through an alternative to resolve the disputes.
CONCLUSION:
Due to globalization and industrialization, several global challenges can be adjudicated through alternative methods like Alternative Dispute Resolution. ADR has gained popularity with the growing demand but as everything has its pros and cons and so is ADR, certain cases cannot be solved through the informal process or through negotiations or communications like criminal matters including the offenses like murder, rape, etc such type of grievous offenses needs a proper formal adjudication which can be done by litigation.
[i] Dr. ANUPAM KURLWAL, An Introduction to Alternative Dispute Resolution System (ADR) 4 (2nd edition 2014).
[ii] iasplanner, http://www.iasplanner.com/civilservices/ias-pre/gs-polity/judiciary-alternative-dispute-resolution-mechanisms, (last visited Feb. 01, 2024).
[iii] Christopher Charles, Mediating Real Estate Disputes, PROVIDENT LAW, (2017).
[iv] Dr Anil Kumar Singh, MEDIATION: EXTRA JUDICIAL SETTLEMENT OF DISPUTES, 2, Journal of legal studies and research, P. 1- 4, 2016, https://thelawbrigade.com/wp-content/uploads/2019/05/Anil-Kumar-Singh.pdf
[v] Bizibrains Okpeh, Modes of resolving disputes arising from vicarious liability, LAWPAVILION BLOG (Feb 20, 2024, 9:29 PM) https://lawpavilion.com/blog/modes-of-resolving-disputes-arising-from-vicarious-liability.
[vi] ASCHALEW ASHAGRE, CONCILATION OF LABOUR DISPUTES IN ETHIOPIA: A CRkTICAL ANALYSIS, 1, Jimma University Law Journal, P. 114- 116, file:///C:/Users/mishr/Downloads/3809-Article%20Text-7399-1-10-20220629.pdf
[vii] Chaudhry, Sharmendra, Negotiation Strategies – A Comparative Analysis (June 6, 2011). Available at SSRN: https://ssrn.com/abstract=1858798 or http://dx.doi.org/10.2139/ssrn.1858798
[viii] forumias, https://forumias.com/blog/gram-nyayalayas-act/#gsc.tab=0, (last visited Feb. 01, 2024).
[ix] DRISHTI IAS, https://www.drishtiias.com/daily-updates/daily-news-analysis/lok-adalats (last visited Feb 22, 2024).
[x] WIPO, https://www.wipo.int/amc/en/center/advantages (last visited Feb 23, 2024).
[xi] David Jones, 7 Advantages of Litigation in Dispute Resolution, GLAISYERS (2019).
[xii] Afcon Infrastructure Ltd. V/s CV Construction Pvt. Ltd., 2010 (8) SCC 24
[xiii] K.K Modi V/s K.N Modi, AIR 1998 SC 1297
[xiv] Kale V/s Deputy Director of Consolidation, 1976 AIR 807, 1976 SCR (2) 20