ADR MECHANISM IN INDIA: APPROPRIATE DISPUTE RESOLUTION

 

INTRODUCTION

The biggest mockery of law is the denial of justice through delay but in the Indian context it is not limited to mere mockery; the delay in fact kills the entire justice dispensation system. Desire for affordable and speedy justice is universal. The principal article that ensure many right implicitly under its ambit is Article 21 it also enshrined the right of speedy trial as right to life and personal liberty. The constitution of India guarantees for some fundamental right one of them is aforementioned here. The denial of justice on time is the denial of litmus justice as the time in every sense is of utmost importance. The delay in the facts kills the entire justice dispensation system of country. “Any conflict is like cancer. The sooner it is resolved the better for all the parties concerned in particular and society in general. If it is not resolved at the earliest possible opportunity, it grows at a very fast pace and with time and the effort required to resolve it increases exponentially as new issues emerge and conflicting situations galore. One dispute leads to another. Hence, it is essential to resolve the dispute, the moment it raises its head.1 Disposal of cases in time is the necessity to maintain the rule of law and providing access to justice, which is a fundamental right of every citizen guaranteed by the Constitution.”[1]

In 1996 the Indian Legislature feels that there is need of something to lower the burden of judiciary, there should be a more efficient justice delivery system in the form of arbitration. Thus, Parliament enacted Arbitration and Conciliation Act, 1996 to provide quick and effective redressal of disputes. The ADR in many field referred as ADR Appropriate Dispute Resolutionand not as an Alternative dispute resolution. ADR is also being referred as a global system as it is not restricted by territorial jurisdiction, which is a major hurdle in litigation process.[2]

Need Of ADR in India

To curb the problem of delay in justice and to give an speedy justice, the system of dispensing  justice in India adopts an alternative form of justice delivery system in some matters. It also helps the court in a multidimensional way as it reduces the burden of cases on court. The alternative dispute resolution by the very procedure utilized, it can safeguard and upgrade individual and business connections that may somehow or another be harms by the antagonistic procedure. It is additionally adaptable on the grounds that it permits the hopefuls to pick techniques, which fir the idea of the debate and the business setting in which it happens. The ADR covers various modes of settlements, it is used globally and now many big corporate industries prefer to opt for ADR in place of civil litigation to resolve any dispute as there are many benefits of same when compared to other forms of dispute resolutions.  There is a need of ADR in India due to plenty of reasons amongst which the most prominent is to quickly resolve dispute also it brings more confidence to the parties as it is usually less formal, less time consuming  and less expensive than that of other methods for dispute resolution that mainly includes court trials.

Forms of ADR

There are many forms of ADR that existed in present time. ADR is a mechanism of dispute resolution that is non adversarial, i.e. working together cooperatively to reach the best resolution to the parties. Generally, ADR is classified into following types:

  • Arbitration

The sine qua non for the process of Arbitration is a valid arbitration agreement prior to the emergence of dispute. It is an adjudicatory procedure in the idea of antagonistic procedures wherein parties present their questions to an unbiased outsider (Arbitrator) for a choice. The procedures, like case are be that as it may, quicker, less expensive, classified and increasingly adaptable in system and utilization of rules of proof. The gatherings have the autonomy to chalk out the equivalent in the consent to assertion. The said understanding which should fundamentally go before intervention, ought to be a legitimate one according to the Indian Contract Act, 1872. The gatherings to an intervention understanding must have the ability to go into an agreement as far as Sections 11 and 12 of the said Act.Arbitral choices are conclusive and authoritative on the gatherings with constrained extent of questioning them.

After the decision of any arbitral proceedings the final decision given by the arbitrator is called ‘Award’ and holds the value as of in parity with ‘Decree’, the award on the dispute is mostly binding on the parties. The process is more convenient and less formal than a trial, and the rules of evidence are often relaxed. Generally, there is no right to appeal an arbitratorsdecision and its final and conclusive. There is exception for same, as in some interim measures, there is very little scope for judicial intervention in the arbitration process.Section 8 of Arbitration and Conciliation Act, 1996 gives if any gathering slights the arbitral understanding and as opposed to moving to arbitration, moves that suit to common court, other gatherings can apply the court for alluding the issue to discretion council according to the understanding yet not later the accommodation of the main explanation. The application must incorporate an ensured certified copy of arbitration agreement and if courts find it satisfactory, the issue will have alluded to arbitration.

  • Conciliation

It is an intentional, disputant-focused, non-restricting strategy for question goals wherein an unbiased and dependable outsider encourages a settlement between the parties. It is a secret and organized procedure where the middle person utilizes exceptional correspondence, arrangement, and social aptitudes to help the disputants in showing up at a commonly worthy arrangement themselves. The gatherings thereto should be eager to resolve the wrinkles in their connection by a little outside assistance as the spotlight in intercession is on what’s to come. It is perfect where the accentuation of the gatherings is on building connections, as opposed to finding out the gathering to blame for what has just happened. The result of an effective intervention is a settlement understanding, and not a choice. The target of intervention isn’t to assess blame or blamelessness yet to advance comprehension, center the gatherings around their inclinations, and urge them to agree.

It is a non- binding procedure. It is less formal form of arbitration, as the parties are at liberty to reject or accept the recommendations of the conciliators. If both the parties accept the recommendation and settlement drawn by the conciliator then it shall be final and binding on both the parties.

  • Mediation

It is one of the most easy and uncomplicated party centered negotiation process in the ADR. In mediation a neutral and unbiased person called a “mediator” helps the parties try to reach a mutually acceptable resolution of the dispute. The task of mediator is to helps the parties to communicate so they can settle their dispute by their own, here mediator is not act as a judge like in the case of arbitration. Mediation leave control of the outcomes with the parties.  The Mediation is best referred for the disputes related to marital issues. Disputants may use meditation in a variety of disputes, such as legal, diplomatic, commercial and other matters.

  • Negotiation

The other form of ADR is negotiation that is widely used in present time. It is also a non-binding procedure in which a dialogue takes place between parties to come out on a conclusion to resolve disputes. There is a discussion between the parties that are at disputes without the intervention of any third party with the object of arriving at a negotiated settlement to the dispute. This form of ADR occurs mainly in business, government branches, non-profit organizations and in personal matters of divorce mainly.

These are the some of the well-known form of ADR that is widely used and gain attention at a global as well as local level. The mechanism of ADR in Indian context is aforementioned here in a brief, the ADR is now gaining a prominence in the present time.

Conclusion & Way forward

Alternative Dispute Resolution instrument (ADR) isn’t a substitution of proceedings or litigation, rather it is utilized to make our conventional court frameworks work all the more productively and successfully. We need to plan compelling Alternative Dispute Resolution components to facilitate the current weight of legal working. The excess of cases is expanding step by step; nonetheless, legal executive alone isn’t answerable for the equivalent

ADR had proven successful in multidimensional ways  it helps the judiciary to lower their burden, it helps in clearing the backlog cases in various levels of judiciary. The Lok Adalats a form of ADR is too effective for speedy disposal of cases. The issue with the ADR is that still after the enactment of laws there seems to lack awareness about the availability of these mechanisms. There is need that Legal service authorities should disseminate more information regarding the ADR, so they become the top most priority to litigants.

References

1] ‘ ADR Mechanism’ https://www.drishtiias.com/to-the-points/Paper2/alternative-dispute-resolution-adr-mechanisms-paper-2

2] ‘Vinay Prakash’, “ADR in India” https://www.mondaq.com/india/court-procedure/654324/alternate-dispute-resolution-adr-in-india

3] ‘Dr. Anil Kumar Singh’ ,”ADR Mechanism in India: Achievements and Challenges’ https://www.worldwidejournals.com/paripex/recent_issues_pdf/2016/August/August_2016_1471096198__42.pdf

4] ‘ADR Mechanism: A Brief Overview” http://www.legalservicesindia.com/article/224/ADR-Mechanism-in-India.html

5] ‘Chapter 3’, “ Different Modes of ADR”  https://shodhganga.inflibnet.ac.in/bitstream/10603/44117/9/09_chapter%203.pdf

[1] Prof. Anurag K. Agrawal, Strengthening ‘Lok Adalat’ Movement in India, AIR JL. Section, Vol. I, March 2006, p. 33)

[2] http://arbitrationindia.org/pdf/tia_4_2.pdf,Vol. 4, Issue 2, February, 2012 Accessed on 15/03/2012

 

Submitted by- Shelal Lodhi Rajput

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