A Birds Eye View of Current Scenario of ADR in India
The congestion in courts, lack of adequate manpower and resources, the rigidity of procedure, and lack of participatory roles are still the problems faced by the Indian judiciary. As a result, the justice dispensing system has come under great stress. The inflow of cases cannot be stopped nor should we, since the doors of justice can never be closed. Therefore there is a continued need to increase the outflow, which requires some additional outlets. ADR mechanisms with a political framework have promised great potentiality to address the problems and stand as additional outlets in India.
Lok Adalats have been quite successful in India in resolving a huge number of pending cases. Its adoption of negotiation, mediation, and conciliation methods to resolve disputes is quite unique. In addition to the authorities established under the Legal Services Authorities Act 1987, the legal aid societies in different law schools and law colleges in India are taking up the task of conducting Lok Adalats, especially in rural India, which lacks the proper dispute settlement system. The proposals are made to strengthen the Lok Adalat system in order to increase public confidence in the system.
Unfortunately, despite the fact that the Indian legal system encourages dispute settlements through ADR mechanisms, our masses have not yet embraced it whole-heartedly. The foremost reason for ADR’s unpopularity owes to the government’s and Bar’s failure in reaching it to masses. The facts and figures show that the success of ADR in USA is due to strong initiative taken by the Bar. In most of the developed countries, the Bar is divided into litigating lawyers and non-litigating lawyers. The percentage of non-litigating lawyers in all the developed countries is significantly higher than the litigating lawyers However, we don’t find many non-litigating lawyers in India. This may be attributed to the lack of proper understanding of ADR mechanisms by the lawyers, who are generally devoid of any training in administering the ADR techniques. The lack of an institutional framework in India has also stood as a major obstacle in the popularization of ADR.
Despite the fact that the ADR is acknowledged worldwide as an effective, swift and cheap alternative to litigation through formal courts, in India it is found that all ills that beset the courts are also attached to ADR.68 There is no strict qualification criterion for the appointment of the arbitrator, conciliator, mediators or negotiator. This factor has kept open the chances of passing unreasonable awards or bad mediation or negotiation, resulting in further enhancement of conflicts. There are also instances of ADR mechanisms being very expensive, sometimes much more than the ordinary court proceedings. While the ordinary court proceedings may be facilitated by free legal aid, the ADR would often involve the payment to the arbitrators, conciliators, mediators or negotiators for hiring their services. This factor compels the poor Indian masses from not resorting to the ADR process. The speedy disposal of cases through ADR also requires sincere and dedicated persons administering it. But unfortunately in India, we do not have a separate group of people who are skilled and devoted only to the resolution of disputes through ADR. Given this fact, the people who administer ADR in India are busy legal practitioners, having cases in courts almost every day. This negates the advantage of ADR’s speedy proceedings by making it quite lengthy and time-consuming.