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ADR: A better way to access justice
Access to justice is an intrinsic term, in which the definition of the term ‘justice’ depends on the context in which it is being used. For some, it may be fairness whereas, for others, it might be termed as an advantage of the stronger. For many, access to justice is not the same as access to courts. For small disputes, they do not wish to go to the court, which is considered to be the conventional form to solve a dispute. In our legal system, we mostly follow the adversarial system. This system has created many problems among the public to access justice. Some of the prominent issues are lack of awareness about legal rights, the difficult language of the law, delay in time due to the extended role of advocates and litigation processes and also, the adoption of the adversarial model of litigation increases the cost of the process. To overcome such issues, the modern form of a judicial system called Alternative Dispute Resolution is very prevalent. It is also a type of out of court settlement, which enables the parties to solve their conflicts apart from litigating. This concept is in addition to the Courts in character. It helps in the achievement of justice speedily. The concept of ADR is not new, it existed in ancient times in different ways but in modern times it has adopted in a very structured manner.
Alternative Dispute Resolution broadly comes in two categories- court-annexed options and community-based dispute resolution mechanisms. Court annexed Options include techniques like mediation, conciliation, arbitration, which includes appointment to the third party who is neutral in nature and assists the parties to settle the dispute in accepting the terms mutually. ADR includes less adversarial methods which make it faster and less expensive.
There are different techniques under ADR, which together constitutes the mechanism-
Negotiation: In this method, parties can settle disputes by discussing it with the opposing party by even appointing their representatives. Negotiation excludes the participation of any authority and is often dependent on the bargaining power of the parties.
Mediation: In this method, a third party called mediator is appointed to assist the parties. The mediator is just a facilitator and the parties are free to evaluate the law and facts. It is a party-friendly method, which usually deals with family disputes and property disputes.
Arbitration: In this process, the parties refer their conflicts to one or more people referred to as Arbitrators. These people review the case and run the process as per the arbitration agreement signed before choosing the method of arbitration. The decision of the arbitrator is called ‘award’ and it is legally binding on parties.
Conciliation: This method is less formal than Arbitration as it does not need any prior agreement. The conciliator is appointed by any of the parties. In this method, parties submit a copy of statements to the conciliator, after which the conciliators calls the parties for a meeting. The conciliator has the power to reform the settlement document if there arises any further conflict.
In light of the problems mentioned above about the adversarial form of the legal system, which includes litigation, there is a much need to adopt an alternative model by the countries, which face problems in accessing speedy and fair justice. As it is said -‘Justice delayed is justice denied’.
- The term ‘justice’ depends on the context in which it is being used.
- Alternative Dispute Resolution broadly comes in two categories- court-annexed options and community-based dispute resolution mechanisms.
- ‘Justice delayed is justice denied’.
