Is ADR a Process for obtaining Privatised Justice?
April 24, 2022 • Nikita Saha
AUTHOR'S PROFILE: This article is written by Pratyusha Mohanty, a 3rd-year law student at Madhusudan Law College, Cuttack.
Any civilized society's pillar and object is justice. The pursuit of justice has been a goal for humanity for many decades. Our Constitution's preamble expresses aspirations for "social, economic, and political justice." Article 39-A of the Constitution guarantees fair access to justice. The defence of the innocent, the prosecution of the guilty, and the satisfactory settlement of disputes are all Parts of the administration of justice. Adversarial litigation is not the only way to resolve conflicts, as the world has seen. The business of justice is being promoted to abandon the courts for new platforms with the approval and encouragement of the government and other policy-making bodies. This outsourcing of conflict settlement must be weighed against our essential public duty to provide substantive justice to all citizens on an equal footing.
They are meant to be used in conjunction with the adjudication method for resolving disputes. A.D.R. is described as a process in which a conflict is resolved with a neutral agent's active participation and presence. In its ideal form, A.D.R. is seen as settling the dispute and restoring the parties' relationship to its pre-conflict state. The Supreme Court of India has also recommended that A.D.R. be included as part of a "package system" that "meets the needs of consumers." The need for equitable, speedy, and proportionate resolution of disputes, focusing on settlement, even before court proceedings are commenced, has fueled interest in A.D.R. among the civil justice system, including the judiciary and legal profession, over the last decade or so.
The traditional civil law, known as the Code of Civil Procedure (C.P.C.) 1908, has also been revised, and section 89 has been implemented to streamline the Indian legal system. Section 89 (1) of the C.P.C. allows for dispute resolution outside the courtroom. It states that if the court believes there are elements that the parties should agree on, the court can devise the terms of a potential settlement and refer it to arbitration, conciliation, mediation, or judicial settlement.
Articles 14 and 21, which deal with equality before the law and the right to life and personal liberty, respectively, are also foundations of A.D.R. A.D.R. aims to provide social, economic, and political justice while maintaining the society's dignity, as mentioned in the preamble.
WHAT IS ADR?
When litigation is the standard and A.D.R. is the alternative, as the acronym implies. Appropriate Dispute Resolution, also known as Alternative Dispute Resolution (A.D.R.), is any protocol or variation of procedures mutually entered into by the parties to a dispute, as opposed to one suing the other openly in an open court. A.D.R. is a collective term for how parties can settle disputes with the help of a third party. A.D.R. proposes a limited, mediated interference aimed at orchestrating dialogue and information exchange while leaving the parties as accessible as possible to find a resolution within their universe of meaning.
A.D.R. is not a new idea; the concept of parties resolving their conflicts by themselves or with the assistance of a third party dates back to ancient India. The primary goal of the A.D.R. movement is to escape the vexation of litigation, cost, and delay while also promoting the principle of "they do" The A.D.R. framework aims to provide low-cost, straightforward, simple, and accessible justice. A.D.R. is different from formal judicial proceedings. Disputes are resolved with the help of a third party, where the proceedings are straightforward and, for the most part, performed in the manner agreed upon by the parties. A.D.R. encourages the resolution of conflicts quickly, with less time, talent, and resources spent on the decision-making process while protecting the confidentiality of the subject matter. Some senior judges in some jurisdictions (including England and Wales) firmly support using mediation as an alternative dispute resolution method. Since the 1990s, many American courts have pushed for the use of alternative dispute resolution (A.D.R.) to resolve conflicts.
MECHANISMS OF ADR
This O.G.C. Guidance offers an overview of dispute resolution approaches, ranging from informal mediation to increasing formality and more directive intervention from external sources and procedures that require the use of an external third party and are considered an alternative to litigation.
Arbitration- A neutral third party considers all sides of a dispute in arbitration and decides that settles the conflict. The arbitrator is unbiased, which means he or she does not take sides in the dispute. In most cases, the arbitrator's ruling is legally binding on all parties, but you will not appeal the decision in court.
Mediation- In mediation, an impartial third party (the mediator) assists disputing parties in reaching an agreement. The parties to the conflict, not the mediator, determine whether or not they can reach an agreement and what the final result should be.
Conciliation/Reconciliation- Similar to mediation, conciliation entails an impartial individual (the conciliator) attempting to assist parties in conflict in resolving their differences. The conciliator should be unbiased and avoid taking sides. The parties to the dispute, not the conciliator, are in charge of settling the conflict. In some instances, the conciliator expresses a view about what constitutes a fair settlement.
Negotiation - It is a form of conflict resolution that is possibly the most common. You can either negotiate with the person with whom you disagree, or you can have someone else negotiate on your behalf, such as an adviser or a solicitor.
Lok Adalat- A serving or retired judicial officer, social activist, or members of the legal profession preside over Lok Adalat, which is known as the "People's Court." Lok Adalats are held regularly by the National Legal Service Authority (N.A.L.S.A.) and other Legal Services Institutions to exercise such jurisdiction.
Ombudsmen- An ombudsman look at and settle concerns about businesses and government agencies. They also promote best practices in the handling of grievances.
Dispute Resolution Boards (D.R.B.)- a panel of competent, respected, and neutral representatives established within the contract continuum to address early-stage disagreements or disputes. Even though the D.R.B.'s recommendations are non-binding, they may be admissible in future proceedings.
THE QUEST TO A.D.R
The reasons advanced for the cause of A.D.R. are strikingly similar in most parts of the world, whether developed or developing. Court congestion, delays, expenses, and procedural inconveniences are the usual arguments to justify the search for alternatives. There are ongoing debates about the pros and cons of different A.D.R. options. Some advantages of A.D.R. is
- Mediators sometimes claim that mediation is faster and less expensive than court. The formality of the A.D.R. procedure is less than that of the conventional judicial process, and the costs incurred are minimal.
- A.D.R. can be faster than going to court in some instances. For example, if you have a minor allegation in court, your case could be referred to mediation before a scheduled hearing.
- Going to court will exacerbate a bad situation because the judicial system is adversarial, separating one side against the other, with a winner and a loser at the end. Mediation, in which you speak to each other to find a solution, will help you keep the relationship going. If you disagree with your neighbour, your ex-partner, or your landlord, this may be helpful. This does not imply that you should remain quiet when you disagree or agree with others when you do not. It entails listening to the other person's point of view and letting them listen to yours before deciding what to do next.
- A.D.R. has a much wider variety of results than the courts. If you want an apology, an explanation, or a change of policy or procedure from an agency, mediation or an ombudsman investigation might be better than going to court.
- Unlike the judicial system, A.D.R. systems usually are more flexible. Most ombudspersons will investigate the case by letters and records without a formal hearing. In most cases, mediators would bring the sides together for a face-to-face meeting.
- Mediation, when done correctly, will result in a compromise that is acceptable to all parties. According to research on family mediation, settlements reached through mediation are more likely to work out in practice and last longer than court-ordered agreements. Almost all negotiated settlements in small claims cases are followed, with bailiffs seldom taking action. This is not the case for court orders, which often require the successful party to take action and pay additional costs to enforce them.
- Litigation's vexatious essence is a quality that requires no justification. It would undoubtedly be advantageous to provide an alternative process that will alleviate one of the annoyances associated with the pursuit of justice.
- The parties themselves agree to the appointment of an officer or arbitrator in the Alternative dispute resolution. It is the most advantageous point in Alternative dispute resolution.
Disadvantages of A.D.R.
- Prevents the elaboration of legal precedent and growth. Mediation agreements should not serve as precedents in potential cases. They are typically personal and private. You can go to court if you need to make a legal point that others may rely on.
- Human rights are protected due to public trials and the dissemination of the verdict. The majority of A.D.R. processes do not allow for this.
- Public transparency is lacking.
- The vocabulary of agreement, settlement, and partnerships obscure disproportionate social control.
- Prejudices arise as a result of the dispute resolution process. Party’s prejudices are more likely to appear in informal proceedings, mainly when they are not in the public eye.
- A.D.R. trials will be detrimental to women and other historically oppressed groups in society.
- In A.D.R. processes, you cannot get a decision on your civil rights, including discrimination and human rights. You can also settle a dispute on these matters, but you will not get a ruling on whether or not the rule was violated.
A.D.R IS A BETTER “ACCESS TO JUSTICE”
Despite their best efforts, ordinary men can become entrapped in litigation for a lifetime, and litigation can even be passed on to the next generation. He could deplete his resources as a result of the operation, in addition to being harassed. Both those involved in the administration of justice have a long-term agenda of quickly resolving cases and providing high-quality justice. In this context, Alternative Dispute Resolution (A.D.R.) strategies are urgently needed to complement the existing court infrastructure. Apart from improving the quality of the judicial system, steps are being taken worldwide to make A.D.R. systems available for settling pending conflicts and at the pre-litigation level. Professional teams of mediators and conciliators have successfully supplemented the dispute resolution and adjudication process elsewhere globally, especially in the United States, where professional teams of mediators and conciliators have successfully supplemented the dispute resolution and adjudication process.
Shri P.V.Narasimha Rao, India's Prime Minister, inaugurated the International Center for Alternative Dispute Resolution (I.C.A.D.R.) in 1995, stating: Litigants should be encouraged to use alternative conflict settlement so that the court system is burdened with less essential cases that need judicial intervention.
1) To reduce court overcrowding, as well as the associated costs and delays
2) To increase public involvement in the conflict resolution process
3) To make more amicable access to justice possible.
4) To think deeply about the negotiating process to improve the morale and efficacy of mediation and resolution conferences.
5) To understand the language of negotiation, mediation, and settlement conferences to put all of these processes into a meaningful context.
6) To be aware of the most recent research findings in business communication, psychology, and law and how they can be applied to negotiation medicine and settlement conferences.
7) Using realistic exercises and case studies, develop more effective personal negotiations, mediations, and settlement conference dynamics.
8) To classify conflict resolution techniques and adapt them to real-life situations.
JUDICIAL APPROACH TOWARD A.D.R
Several clauses gave the Courts the power to refer conflicts to mediation prior to the enactment of S. 89, C.P.C. The Industrial Disputes Act of 1947, Section 23(2) of the Hindu Marriage Act of 1955, and Section 9 of the Family Courts Act of 1984 contain such provisions. Section 80, Order XXIII, Rule 3, Order XXVII, Rule 5-B, Order XXXII-A, and Order XXXVI of the Code of Civil Procedure, 1908 contain specific provisions. The Arbitration Act 1940 was not able to meet the domestic or international standards of resolving disputes. Therefore the Arbitration and Conciliation Act of 1996 came into force.
- In the case of Salem Bar Association vs. Union of India4, under section 89(2)(d) of the Code of Civil Procedure, 1908, the Supreme Court of India ordered the preparation of model rules for alternative dispute resolution and draught rules of mediation.
- The Supreme Court stated in Renusagar Power Co Ltd vs. General Electric5 that this law aimed to encourage and promote international trade by allowing for the quick resolution of trade disputes by arbitration.
- The Supreme Court held in Bhatia International v Bulk Trading SA6 that when arbitration is held in India, the rules of Part I must be followed. In foreign commercial arbitrations held outside of India, however, the provisions of Part I will apply unless the parties agree, expressly or implicitly, to exclude any or parts of them. Part II of the Act covers only arbitrations in a convention country. The recent decision enabled aggrieved parties in international arbitrations to seek temporary relief in India.
- N.E.P.C. India Ltd. v. Sundaram Finance Ltd7, the question, in this case, was whether the court had the authority to issue temporary orders under Section 9 of the 1996 Act, even before arbitral proceedings had begun and an arbitrator had been named. The Indian Arbitration Act borrows heavily from the UNCITRAL Model Law, which states that: "It is not incompatible with an arbitration agreement for a party to request, before or during arbitral proceedings, from a court an interim measure of protection and for a court to grant such measure."
- A three-judge bench of the Supreme Court held in Konkan Railways Corp Ltd vs. Mehul Construction Co8 that the Chief Justice's order in case of appointment of arbitrators in domestic arbitrations and the Chief Justice of India's order in international commercial arbitrations (made under Section 11 of the Arbitration and Conciliation Act) should be deemed to have been made in his administrative capacity and the aggrieved party could approach the arbitral tribunal under Section 16 for challenging the jurisdiction of the tribunal.
Within the conventional legal system, A.D.R. has the ability to play a substantial role, and its use has undoubtedly benefited the parties in terms of cost savings, the maintenance of working relationships, and the freeing up of management resources to focus on future developments rather than past issues. However, within the context of conflict management and dispute resolution approaches available in the legal landscape, A.D.R. must be viewed as alternatives or contractual provisions. The overarching aim of A.D.R. is to ensure that everybody receives equal justice. Providing an effective alternative to litigation that addresses issues of access to justice is a pressing need. According to the author, the most compelling reasons to use an alternative method are dual access to justice and social peace. A fine synchronization of litigation that responds to people's rights and local level alternative conflict resolution approaches that enable people to be accountable to themselves and society would be a model to strive for. A.D.R. has been instrumental in clearing the backlog of cases at different levels of the judiciary in the last three years – Lok Adalats alone has disposed of over 50 lakh cases each year on average. At this stage, just a few items must be done to ensure the smooth functioning of the A.D.R. processes.
- The first step is to raise awareness of the techniques and popularize them.
- Court-administered mediation and conciliation would necessitate the provision of appropriate resources and facilities, which will necessitate government support.
- The value of A.D.R. training programs cannot be overstated. Judicial academies at the state level may serve as a facilitator or active doers in this regard.
- Reforms in the systemic and organizational aspects of the justice dispensation process.
This would significantly reduce the burden on the judiciary and deliver immediate justice at the doorstep at a low cost. Therefore, this will eliminate procedural flaws and delays, and justice will ideally be focused on honesty and morality, as stated in agreed social justice considerations.
- Department for Constitutional Affairs, Legal Policy, Alternative Dispute Resolution
- The Office of Government Commerce (O.G.C.)
- (2005) 6 SCC 344
- A.I.R. 1985 SC 1156
- AIR 2002 SC 1432
- AIR 1999 SC 565.
- A.I.R. 2000 SC 2821,