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TYPES OF ADR & PREVALENT WAYS OF DISPUTE RESOLUTION
TYPES OF ADR & PREVALENT WAYS OF DISPUTE RESOLUTION
Dispute resolution is the process of deciding a dispute or a conflict that has arisen between transacting parties. The decision can be arrived at either in an amicable manner or adversarial manner, either by the parties themselves or a neutral third party. The differences between the parties are addressed by dealing with their transaction-related interests.[1] While the conventional method of dispute resolution or litigation refers to the trial before an appropriate court according to the prescribed protocol, the alternative approaches are more versatile and party-centric and include negotiation, mediation, conciliation, and arbitration. Hybrid-approaches, as the name suggests, are a cross-over of two different conflict resolution approaches.
The need to evolve alternative mechanisms to reduce the burden of the Courts and provide speedy access to justice along with the revival and strengthening of traditional systems of dispute resolution prompted the introduction of ‘Section 89’ in the Code of Civil Procedure, 1908[2] and ultimately, the Arbitration and Conciliation Act, 1996. The former opened the passage of statutory reference to ADR, either by the Courts or the parties themselves.
Under the provisions of Section 89, CPC, reference for the resolution of disputes could be had to any one of the following:
- Arbitration or Conciliation- Proceedings under the provisions of the Arbitration and Conciliation Act, 1996.[3]
- Lok Adalat- under the Legal Services Authorities Act 1987[4], all provisions of which shall then apply.
- Judicial Settlement- Reference by Court to a suitable institution or person who/ which shall be deemed to be a Lok Adalat and all other provisions of the 1987 Act shall apply.
The two most prevalent forms of Alternative Dispute Resolution are :-
- Arbitration:
It is an adjudicative mechanism in the context of the adversarial proceedings, in which the parties send their disputes for a ruling to an arbitrator. Similar to court, the trials are, however, quicker, cheaper, more private, and more versatile in the process and application of evidence rules. In the arbitration agreement the parties have the right to map out the same. The said agreement, which must obviously precede arbitration, should be a legal agreement in compliance with the Indian Contract Act of 1872[5]. The parties to an arbitration agreement must be capable of agreeing a settlement in compliance with Section 11 and 12 of the Act. Arbitral rulings are conclusive and binding on the parties who have a little scope to object.
- Mediation:
Mediation: It is a disputant-focused, non-binding dispute resolution mechanism whereby, a neutral and impartial mediator encourages mediation between the parties. It is a confidential and organized mechanism where specific communication, negotiation and social skills are used by the mediator to support the disputants themselves in finding a mutually satisfactory solution. [6]Parties must be able to work out the creases in their partnership with a little outside support as the emphasis is on the future in mediation. This is best where the parties 'focus is on establishing relationships, instead of finding the party at fault for what has already happened. The product of an effective mediation is a harmonious compromise, rather than a decision. Mediation is not aimed at determining guilt or innocence, but at fostering empathy, focusing the parties on their goals and allowing them to achieve their own consensus.
[1] Ivneet Walia, Alternative Dispute Resolution and the common Man, available at http://www.legalserviceindia.com/article/l312-Alternate-Dispute-Resolution-And-The-Common-Man.html
[2] Section 89, Civil Procedure Code.
[3] Arbitration and Conciliation Act, 1996, http://legislative.gov.in/sites/default/files/A1996-26.pdf
[4] Legal Service Authority Act, 1987, available at https://maitri.mahaonline.gov.in/pdf/The_Legal_Services_Authority_Act,_1987.pdf.
[5] Indian Contract Act, 1872, available at https://indiacode.nic.in/handle/123456789/2187?view_type=browse&sam_handle=123456789/1362
[6] ALTERNATIVE DISPUTE RESOLUTION IN INDIA: A BRIEF OVERVIEW, Madhu Sweta & Aarushi Malik, available at https://singhania.in/alternative-dispute-resolution-in-india-a-brief-overview/.
- Mediation
- Arbitration
- Alternative Dispute Resolution
