Whether the defects of the court system influence the choice of ADR?
With the adoption of the Constitution guaranteeing freedoms to the citizens and the establishment of an independent and powerful judiciary, with powers of judicial review, the spread of literacy and the considerable increase in the level of awareness of their social, economic and political rights by more prominent sections of the population, the demands on the justice delivery and dispute resolving institutions came under tremendous pressure, as reflected in the number of cases that are taken to the courts. The most telling index of the malaise is the sheer size and number of cases pending in courts. While the number of new institution cases steadily increased, the rate of disposal of cases, especially at lower levels, remained static or worse. All this prompted the search for alternatives to court litigation. Also, the justice system is top-heavy – lawyers, courts, and outdated legal practices and jargon dominate it. Traditional civil litigation imposes substantial costs and delays long before a trial commences. Further, the congestion of trial calendars in most courts, caused partly by a substantial criminal docket, contributes substantially to that cost and delay.
In this environment, alternative processes for dispute resolution offer many advantages.
The realisation was there that it is in no one’s interest to create a litigious society. The government wanted people to make responsible choices about whether a case is worth pursuing, whether to proceed by negotiation, court action, or in some other way, and how far to take a relatively minor issue. This has led to the Government focusing on legal aid spending on social welfare schemes and improving the range of options available to people for resolving disputes without a formal court adjudication process. Therefore, several different models of ADR, including mediation, arbitration and ombudsman schemes, are being made available to citizens. ADR offers several possible advantages. It can be less formal and adversarial, and in some cases, it may allow disputes to be resolved more quickly and cheaply.
Previously, many people were unaware of any form of dispute resolution other than the traditional litigation and trial process in front of judge and jury. However, with an increasing number of contractual relationships coming into existence, the number of disputes has been on the rise, and courts are now overburdened with cases and understaffed with judges. So, people, lawyers and even judges have begun turning toward Alternate Dispute Resolution (ADR) to offer some solace and speedy justice to parties to a dispute who usually want to preserve the nature of their relationship. In ADR, a third party is neutral and facilitates a healthy discussion between the parties, thus enabling them to come to a mutually agreeable settlement. This third party (mediator) role in a mediation is to facilitate a discussion between the parties; in arbitration, the third party (the arbitrator) assesses the evidence and makes a binding decision. In conciliation, the third party (the conciliator) facilitates discussion and provides solutions to the parties, while in a negotiation, there is very rarely a third party as the parties discuss amongst themselves.
Being such a demanded form of dispute resolution, ADR must have some advantages over the traditional method of litigation, and some of these are:
The parties have the freedom to choose their arbitrator, mediator or conciliator, which means that they can select an expert who has experience in the field of the dispute rather than just someone who has technical and procedural know-how.
In an arbitration process, the parties have more flexibility to choose the procedural and discovery rules that may apply to their dispute. This means that they can choose industry standards, domestic laws or even foreign laws to be governed by.
Unlike civil law countries, where cases are decided by a jury which can be partial, unpredictable, and emotionally inclined, the process of ADR does not involve a jury.
ADR processes are cost-effective because there is no need to hire expert witnesses or attorneys, and the process is quicker, which reduces the time, thereby avoiding long-drawn litigation costs.
The parties are highly involved and participative in ADR, and they have the power to come to a settlement and make their own decisions. The results of the ADR process can be kept confidential if the parties so choose.
Parties have an increased chance of preserving their business and social relationship.
However, even advantages, certain disadvantages follow the process of Alternate Dispute Resolution, and a few of them are:
Except for arbitration, where the arbitrator makes a binding decision, the ADR process may not always yield a resolution. This means that money and time could be invested in a process that does guarantee resolution.
An arbitrator's decision's finality and binding nature can sometimes be viewed as a disadvantage because it may not always please the parties, and courts will often refuse to review it.
The neutral party – arbitrator, mediator, conciliator, will charge a fee for their time and expertise and depending on their popularity, these fees may be substantial. A judge, on the other hand, charges no fee for his decision.
An arbitration clause in a contract is usually binding, and courts will not waive it unless both parties request litigation.
There is limited protection offered to the parties, especially concerning discovery, as the standard rules governing discovery in litigation do not apply.
A mediator, conciliator or arbitrator can only resolve matters which are civil or which concern money. So, they cannot make authoritative injunctive orders.
This Article Does Not Intend To Hurt The Sentiments Of Any Individual Community, Sect, Or Religion Etcetera. This Article Is Based Purely On The Authors Personal Views And Opinions In The Exercise Of The Fundamental Right Guaranteed Under Article 19(1)(A) And Other Related Laws Being Force In India, For The Time Being. Further, despite all efforts made to ensure the accuracy and correctness of the information published, White Code VIA Mediation and Arbitration Centre shall not be responsible for any errors caused due to human error or otherwise.