Concept and Types of ADR
Just like the diversity in causes of disputes, the settlement models are also varied. Alternative Dispute Resolution encompasses a wide array of practices, which are directed towards a cost-effective and quick resolution of disputes. ADR, as the name suggests, is an alternative to the traditional process of dispute resolution through courts. It consists of a set of practices and techniques to resolve disputes outside the courts. Since it actively involves parties themselves to settle their disputes, it results in the amicable settlement of disputes, which is not possible generally through courts. Hence, these practices are escape routes from the tiresome adjudication process. Many of such practices have evolved to settle the disputes with minimum adverse impact on the relationship between the parties. Mahatma Gandhi has said, “I realized that the true function of a lawyer was to unite parties…” Hence, the role of lawyers in promoting non-adversarial dispute settlement mechanisms is undoubtedly very significant. The ADR techniques mainly include arbitration, conciliation, mediation, and negotiation. In India, Lok Adalat stands as another additional form of ADR mechanism, which combines different techniques like conciliation, mediation, and negotiation.
Arbitration is a process for settlement of disputes fairly and equitably through a person or persons or an institutional body without recourse to litigation by the disputing parties pursuant to an agreement. It may be ad-hoc, contractual, institutional, or statutory. A neutral third person chosen by the parties to the dispute settles the disputes between the parties in arbitration. Though it resembles the courtroom based settlement, it involves less procedure and parties’ choice of arbitrator. It exists with the established less cumbersome process and it is quite useful in resolving different kinds of disputes including international commercial disputes. At present, arbitration is the only legally binding and enforceable alternative to ordinary court proceedings.
Conciliation is a private, informal process in which a neutral third person helps disputing parties to reach an agreement. It is a process whereby the parties, together with the assistance of the neutral third person or persons, systematically isolate the issues involved in the dispute, develop options, consider alternatives and reach a consensual settlement that will accommodate their needs. Usually, the conciliator in this process would independently investigate the dispute and draft his report indicating the method of settlement of disputes.
Mediation involves the amicable settlement of disputes between the parties with the help of a mediator. The task of the mediator is to bring the parties together to the process of amicable settlement of their disputes. A mediator would influence the parties to cut down their demands with a view to reaching a mutually acceptable solution. Hence, the mediator plays the role of a facilitator in attaining cooperation between the parties to the dispute. Mediation lays emphasis on the parties’ own responsibilities for making decisions that affect their lives instead of a third party judging the fate of parties to the dispute.
Negotiation closely resembles mediation. However, it is more often referred to as a method wherein the parties to the dispute themselves would settle their disputes. The negotiation process provides the parties an opportunity to exchange ideas, identify the irritant points of differences, find a solution, and get a commitment from each other to reach an agreement.
Lok Adalat is a unique system developed in India. It means people’s court. It is a forum where voluntary effort at bringing about a settlement of disputes between the parties is made through conciliatory and persuasive means. It encompasses negotiation, mediation and conciliation as tools to settle disputes between the parties. Lok Adalats have been given the powers of a civil court under the Code Civil Procedure.