ADR MECHANISM IN INDIA: A COMPARITIVE ANALYSIS WITH USA

 

INTRODUCTION

The population of India is growing at a fast pace, there arises lots disputes, conflicts between the people for enforcement of their rights. Filing a case against an infringement of any right provides the citizen as well as the residents of any country to file a case against the party. Due to this, there are many litigations pending in India and there is need for more courts to dissolve the matters and to provide justice to the needy ones. There is also a non-formal dispute resolution system called Alternative Dispute Resolution (ADR) introduced in many countries and wherein, in India this system was never considered as prevalent and effective. This method is less expensive and provides faster justice to the people, but in India, this system cannot be relied much as per the opinion of the people. So they generally prefer to avail the court facilities to resolve their disputes. But regarding USA this system became more effective. So, the purpose of this article is to compare the ADR system of USA and India and to bring the reformative changes for betterment and effectiveness of this system in India.

ALTERNATIVE DISPUTE RESOLUTION (ADR)

ADR is a system for resolving the disputes of the people with less official working and provided the speedy justice to the people. It is an instrument to decline the burden on the courts and thus providing the best resolution for everyone. It is considered as the most satisfying method which involves the less cost, speedy justice, it is flexible for the parties involved to indulge in this problem resolving system. There was need of ADR to tackle the pendency of cases, however, it’s a fact that the number of cases resolved throughout in the country are less than the number of cases increasing in a day.

There are types of methods included in ADR:

  • Arbitration
  • Mediation
  • Conciliation
  • Negotiation

There are different acts which are governing the ADR methods and wherein the rules and the procedure are mentioned.

ADR SYSTEM IN USA:

ADR first existed in the New York city from where it was adapted in USA to resolve the disputes and to improve the efficiency and effectiveness of the courts. During 1970,s this system became more effective and there was a need to develop the ADR program and to also develop the procedural rules for its use.

In USA currently , there are above 20 methods included in the ADR system wherein all of them can be divided into three parts:-

  1. Adjudicative – This method involves a person called adjudicator who listens to both the parties and try solving the disputes. In this the parties are not interested to negotiate but then too applies for these process. It includes Arbitration and Neutral Fact Finding methods.
  2. Facilitative – In this method there is a neutral person whose advise is binding to be followed on both the parties. He is a person who serves as an advisor to both the parties and encourages the settlement. It includes Mediation and Conciliation.
  3. Evaluative – It is a method where lawyers present their cases for the clients and get evaluated / receive feedbacks based on their arguments. It includes Peer Evaluation, Lat Evaluation or Summary Jury Trial and Judicial Evaluation.

Benefits provided by this system are :

  1. It is an efficient system and helps in providing the speedy justice to the parties involved.
  2. It is less expensive process as it does not involve the huge Attorney fees, court fees etc.
  3. It is a confidential process and there is agreement signed by both the parties and also the advisor who helps in resolving the disputes that every talk and every data would be confidential and limited to the room.
  4. It is a personal process which involves both the parties to settle their disputes and demand what benefit they want to receive from the following proceedings.
  5. It is also a process which preserves the relationship between both the parties and settle their disputes in effective and calm manner.

The success rate of ADR system is very high in USA, there was a data provided by the department of Justice which revealed that about 2000 months of the litigation process are avoided by this system and $15 million is saved by the parties by this process. There is a lot of employment increased in the ADR methods resolving disputes and even when people retire from the litigation process in courts, many of them usually indulge themselves in the ADR system. The study also showed that there are more than 80% of the matters which are solved by ADR system herein, mainly the Arbitration and rest 20% are through the litigation process.

ADR SYSTEM IN INDIA:

India had a long history in relation to the dispute resolution, firstly it started with panchayats in the village oriented. The ADR system was formally introduced in India with Trade Disputes Act,1929 . As India is labour intensive country, so herein there were many disputes regarding the wages etc.. between the contractor and the workers. As to settle the dispute, this system was introduced.

India is the second largest country in the world in respect to population and with addition to the population there are various religion, group, community, caste and this increases the rate of disruptions and challenges and the infringement of rights of the people, which in all increases the filing of cases. As the Judges and the number of courts are insufficient with the tackling of cases. There is overburdened on Judiciary, time taken in disposal of cases, not meeting up the population etc. developed the need for bringing the ADR system in India.

The ADR system in India is not so effective and efficient as there is lack of awareness among the people of this system and also the main basis is the public perception, the people think that the litigation process is the only form which will resolve their disputes in an effective manner. There is also an absence of training and proper guiding of system by the professionals. Theses are the factors which cause the hindrances for the effective development of Indian Judiciary.

There are mainly four types of ADR methods which have been started practising in India since last 10-15 years, those are :

  • Mediation
  • Conciliation
  • Arbitration
  • Negotiation

CHANGES THAT CAN BE IMPLEMENTED BY INDIAN JUDICIARY

The changes that can be brought in Indian Judiciary system in respect to that of USA to make our system more effective and efficient are :

  • There should be a law wherein the time should be allotted to the courts for the disposal of cases, based on the crux and reality and also on their nature.
  • The government should increase the awareness about the ADR so that there can be less pendency of cases.
  • There should be national institution developed wherein the lawyers should given the training, to reduce the workload.
  • The various platforms should be given to the emerging lawyers, to enhance their skills in the system of ADR.

CONCLUSION

ADR is the system which not only just resolves the disputes, but also improves the relationship between the parties. ADR does not replaces the judicial system, but makes it more efficient. In this article, there is been comparison between the judicial system of the USA and India, and make the more effective suggestions. ADR system has been proved to be very effective in resolving the disputes in USA. India has in contrast, being the slow in settling the disputes as due to lack awareness among the people. In order to make the system effective in India, there should be effective ways taken by ADR training, reducing delays etc. ADR system can be very effective in India, and can help in reducing the stress and workload of judiciary.

Submitted by– Suhani Gupta

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