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Alternate Dispute Resolution Mechanism: Brief Overview

Alternate Dispute Resolution Mechanism

 

The Concept & its efficacy:

 

“It is the spirit and not the form of law that keeps the justice alive.” LJ Earl Warren

 

The concept of Conflict Management through Alternative Dispute Resolution (ADR) has introduced a new dispute resolution mechanism that is non-adversarial. A dispute is basically ‘lis inter parties, and the justice dispensation system in India has found an alternative to Adversarial litigation in the form of ADR Mechanism.

 

New dispute resolution methods such as ADR facilitate parties to deal with the underlying issues in dispute in a more cost-effective manner and with increased efficacy. In addition, these processes have the advantage of providing parties with the opportunity to reduce hostility, regain a sense of control, gain acceptance of the outcome, peacefully resolve conflict, and achieve a greater sense of justice in each case. The resolution of disputes takes place usually in private and is more viable, economical, and efficient. ADR is generally classified into at least four types: negotiation, mediation, collaborative law, and arbitration. (Sometimes, a fifth type, conciliation, is included as well, but for present purposes, it can be regarded as a form of mediation

 

Need of ADR in India:

 

The system of dispensing justice in India has come under great stress for several reasons, mainly because of the huge pendency of cases in courts. In India, the number of cases filed in the courts has shown a tremendous increase in recent years resulting in pendency and delays underlining the need for alternative dispute resolution methods. In this context, a Resolution was adopted by the Chief Ministers and the Chief Justices of States in a conference held in New Delhi on 4th December 1993 under the chairmanship of the then Prime Minister and presided over by the Chief Justice of India.

 

It said: "The Chief Ministers and Chief Justices thought that Courts were not in a position to bear the entire burden of the justice system and that several disputes lent themselves to resolution by alternative modes such as arbitration, mediation and negotiation. They emphasised the desirability of disputants taking advantage of alternative dispute resolution which provided procedural flexibility, saved valuable time and money and avoided the stress of a conventional trial".

 

In a developing country like India, with significant economic reforms underway within the framework of the rule of law, strategies for swifter resolution of disputes for lessening the burden on the courts and to provide means for expeditious resolution of disputes, there is no better option but to strive to develop alternative modes of dispute resolution (ADR) by establishing facilities for providing settlement of disputes through arbitration, conciliation, mediation and negotiation.

 

Impact/resulting acts of ADR:

 

The technique of ADR is an effort to design a workable and fair alternative to our traditional judicial system. It is a fast track system of dispensing justice. There are various ADR techniques viz. arbitration, mediation, conciliation, mediation-arbitration, mini-trial, private judging, final offer arbitration, court-annexed ADR and summary jury trial.

 

These techniques have been developed on scientific lines in the USA, UK, France, Canada, China, Japan, South Africa, Australia and Singapore. ADR has emerged as a significant movement in these countries and has helped reduce the cost and time taken for resolving disputes and providing a congenial atmosphere and a less formal and less complicated forum for various types of disputes.

 

The Arbitration Act, 1940 was not meeting the international or domestic standards of resolving disputes. Massive delays and court intervention frustrated the very purpose of arbitration as a means for expeditious resolution of disputes. The Supreme Court, in several cases, repeatedly pointed out the need to change the law. The Public Accounts Committee too deprecated the Arbitration Act of 1940. In the conferences of Chief Justices, Chief Ministers and Law Ministers of all the States, it was decided that since the entire burden of the justice system cannot be borne by the courts alone, an Alternative Dispute Resolution system should be adopted. Trade and industry also demanded drastic changes in the 1940 Act. The Government of India thought it necessary to quickly provide a new forum and procedure for resolving international and domestic disputes.

Thus "The Arbitration and Conciliation Act, 1996" came into being. The law relating to Arbitration and Conciliation is almost the same as in advanced countries. Conciliation has been given statutory recognition as a means for the settlement of the disputes in terms of this Act. In addition to this, the new Act also guarantees independence and impartiality of the arbitrators irrespective of their nationality. The new Act of 1996 brought in several changes to expedite the process of arbitration. This legislation has developed confidence among foreign parties interested in investing in India or going for joint ventures, foreign investment, technology transfer, and foreign collaborations.

 

The advantage of ADR is that it is more flexible and avoids seeking recourse to the courts. In conciliation/mediation, parties are free to withdraw at any stage of time. It has been seen that the resolution of disputes is quicker and cheaper through ADR. The parties involved in ADR do not develop strained relations; instead, they maintain the continued relationship.

 

 

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. 

  • The Concept & its efficacy
  • Need of ADR in India
  • Impact/resulting acts of ADR

BY : Deewakar Yadav

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