Is Employing ADR Mechanism Acceptance Of Failure Of Judiciary?
Author: Vaishnavi Mangane
Abstract –
One can imagine that all the legal disputes are battled in the courtrooms, but in reality, almost all the disputes are resolved through the method of Alternative Dispute Resolution (ADR). The method of resolving disputes without litigation can be abbreviated as Alternative dispute resolution. The ADR methods typically take any one of the three forms i.e., direct negotiation, mediation, arbitration, and Lok Adalat.
Alternative Dispute Resolution (ADR)
One can imagine that all the legal disputes are battled in the courtrooms, but in reality, almost all the disputes are resolved through the method of Alternative Dispute Resolution (ADR). The method of resolving disputes without litigation can be abbreviated as Alternative dispute resolution. The ADR methods typically take any one of the three forms i.e., direct negotiation, mediation, arbitration, and Lok Adalat.
Regular Dispute Resolution Mechanism
The dispute mechanism is used for dispute resolution and may incorporate conciliation, conflict resolution, mediation, and negotiation. It can also be known as grievance mechanisms. The dispute mechanisms are typically non-judicial, which means they are not resolved within the court.
Need for Alternative Dispute Resolution (ADR)
- Through its diverse techniques, ADR plays a significant role to deal with the situation of pendency of cases in the court of India.
- The main motive is to furnish economic and political justice and to maintain coherence in the society as enshrined in the preamble.
- ADR provides various scientific development techniques to decrease the burden of the courts.
- ADR ensures various means of settlement including arbitration, conciliation, mediation, negotiation, and Lok Adalat’s. Here negotiation relates to self-counseling among the parties to resolve their dispute but does not hold any statutory recognition in India.
- ADR has proven successful in clearing the pending cases at different levels of the Judiciary.
Complexities in regular dispute mechanism –
1. Judge population ratio.
2. Vacancy portion of the court staff.
Conveniences in ADR system –
1) No complications
2) Easy dealing of matters
3) Simplified procedure in taking assistant viz. staff, availing services of staff, etc.
Advantages of alternative dispute resolution (ADR)
I. Consumes less time to resolve the dispute as compared to courts.
II. ADR is a cost-effective method, hence saving a lot of money.
III. Since the informal ways of resolving the disputes are adopted, hence it is free from technicalities of court.
IV. ADR is an efficient way to resolve disputes, as it always provides a chance to restore back their (parties) relations through discussing their issues together on the same platform.
V. ADR avoids future consequences and helps maintain good terms between the parties.
VI. ADR helps the people to express the facts, without disclosing it to any of the courts of law.
VII. ADR works to look after the best interest of the parties.
Comparative advantages of all ADR viz. Arbitration, conciliation, mediation, Lok Adalat.
| Arbitration | Conciliation | Mediation | Lok Adalat |
| a) It provides fairness to both parties as compared to traditional legal trials. | a) In conciliation the presence of an experienced neutral and an attorney who will provide the possible solutions to the disputes and evaluates the risks associated with continuing the dispute. | a) Mediation is an informal process that is not bound by any traditional legal formalities which are less time consuming and less costly than litigation. | a) Lok Adalat’s operate with the spirit of compromise and understanding which makes the parties feel satisfied. |
| b) A legal resolution here is much quicker, less formal, and flexible in scheduling than waiting for the trail date. | b) The parties will be allowed to choose their conciliator based on the criteria of the knowledge in the expertise area and availability. | b) The mediation is not a unilateral process as the settlement of disputes lie in the hands of the parties. It includes self-determination where the parties can terminate the | b) It is less expensive and delivers fast justice as any person can move to Lok Adalat’s through an application on a plain paper or by format available |
| processes at any stage and can take the matter to the court. | through legal service authorities. | ||
| c) Here the cost is much reliable as it doesn’t include any expert witness nor require much legal process. | c) It has time and cost efficiency due to the flexible nature of proceedings. | c) Mediation helps the parties find realistic solutions which are not only sensible but also have long term availability. | c) Lok Adalat reduces the workload on courts and helps look after more serious matters and results in reduction of delays in higher courts. |
| d) The legal process of arbitration is more confidential than of the trial courts. | d) Their will be total confidentiality as agreed upon by the parties and the conciliator as well. | d) Mediation serves to reduce the level of conflicts which are already existing among them, as to avoid further more conflicts between the disputing parties. | d) It helps in direct interaction with the Judge in regards to the disputes, where on the other hand is not at all possible in regular courts of law. |
Statutory base for ADR
∙ Under article 39A of constitution of India ADR also tries to achieve equal justice and free legal aid under Directive Principles of State Policy.
∙ Indian Arbitration Act, 1940.
∙ Indian Arbitration Act, 1996.
∙ Arbitration or conciliation proceedings are dealt with under the provisions of the Arbitration and Conciliation Act, 1996.
Conclusion
The regular judicial mechanism is working well but in certain special situations, as the flowing, ADR serves as a better alternative
- for the simple matters where parties want to settle
- where they can be driven for settlement by arranging a platform for the exchange of dialogue among them,
- when matters can be settled and when the same will work as reducing the burden of the regular judicial system,
- when the litigating parties wish to get speedy justice and consent to the alternative, they stand a win-win situation.
Opting ADR systems can never be considered as a failure of regular dispute resolution mechanisms. Comments in that regard do not deserve any appreciation, it is high to promote and propagate adopt ADR mechanism with which the disposal of cases and both tracks i.e., regular dispute resolution track and alternative dispute resolution track gets disposed of and the same will lead to at least less litigation society, if not a litigation-free society.
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