Alternate dispute resolution, Summaries of Law

Download Alternate dispute resolution and more Summaries Law in PDF only on Docsity! INTRODUCTION Alternative Dispute Resolution (ADR) is a term used to demonstrate various different modes of resolving legal disputes. It is experienced both by the business world & common men because it is almost impracticable for all individuals to file law suits and get justice on time. The Courts are backlogged with schedules resulting in delay of year or more for the applicants to have their cases heard and decided. To solve this problem of backlogged cases and delayed decisions ADR Mechanism has been developed in response. ADR methods are being increasingly accepted in field of law and commercial sectors both at National and International levels. The diverse methods of ADR can help the parties to resolve their issues at their own terms cheaply and rapidly. In developing nations where almost, everyone opts for litigation to resolve their disputes, there is excessive burdening of cases on courts, which has ultimately led to disappointment among people regarding the existing scenario of judicial system and its ability to dispense justice. This opinion is based on the popular belief of, “Justice delayed is justice denied”. However, the blame for the backlogged cases in these developing countries cannot be attributed to the Courts & rigid judicial system alone. The main reason behind the delayed justice is the non-implementation of negotiation processes before litigation. It is against this flaw that the mechanisms of alternative dispute resolution are being introduced in these countries which is very essential for the smooth functioning of the judicial system. These ADR mechanisms, which have been working effectively in providing a cordial and speedy solution for issues in developed economies, are being suitably amended accordingly and applied in order to strengthen the judicial system of the developing countries. The term “Alternative Disputes Resolution” includes various modes of settlement which are, Lok Adalats, Arbitration, Conciliation and Mediation. This technique of ADR has been used by many developed countries for effective disputes resolution. The most commonly practiced among other types of Alternative Disputes Resolution is Mediation. Mediation as a tool for alternate dispute resolution is not a new concept. To put it in simpler terms, mediation is a peaceful settlement of disputes with the engagement of an unbiased third party who acts as a facilitator and is called a ‘Mediator’. The different methods of ADR can help the parties to settle their disputes at their own terms & conditions cheaply and expeditiously. ADR techniques are in addition to the Courts in character. These techniques could be useful in almost all contentious matters, which are capable of being settled, legally, by agreement between the parties. ADR techniques can be engaged in several categories of disputes, especially civil, commercial, industrial and family disputes. From the study of the different ADR techniques it is found that, alternative dispute resolution methods offer quick solution with respect to commercial disputes where the economic growth of the Country rests. Alternative Dispute Resolutions is an alternative solution to the formal & rigid legal system. It is an alternative to litigation. It is because of the fact that the Courts are overburdened with millions of cases. ADR only offers a substitute option to litigation. It is intended only to complement and not supersede the legal system. It can be engaged in civil, commercial, industrial and family disputes. It is very essential in all types of commercial disputes and is considered to offer the quickest solution in respect of business disputes of international character. Even if the ADR proceeding fails, it is never a waste of money and time involved since it helps the parties to see each others position on the case and understand the case better. It is important to distinguish between which form of Alternative Dispute Resolution is binding and which are non-binding. Among all the available methods, negotiation, mediation and conciliation are non-binding forms, and depend on the consent of both the parties to reach a mutual agreement. Binding ADR techniques produce a third-party decision that both the parties must follow even if they disagree with the result just like a judicial decision. Non-binding Arbitration produces a third-party decision that the parties may reject and can even appeal in the court of law. Advantages of Alternate Dispute Resolution are @ The ADR methods usually involve a third party referred to as ‘neutral’, a skilled and unbiased helper who either facilitate the parties in a disagreement or conflict to reach at a decision by agreement or assists them in arriving at a solution to the problem between the party to the dispute. Essential information is a crucial tool for an adjudicator. Rigid judicial proceedings make slow progress because of unwillingness of parties to part with unnecessary information. ADR provides for solution regarding this drawback in the judicial system. It could be difficult to find truth by making a person stand in the witness-box and in the public domain. Necessary information can be gathered more efficiently by an informal method sitting across the table. Therefore, ADR is a step towards success where judicial system has failed in pulling out facts efficiently. ¢ When it comes to mediation or conciliation, both the parties are themselves required to take a decision, since both of them are decision-makers and they are very well aware of the truth of their position. The formality and complexity which involved in the rigid & traditional judicial system is more than alternative dispute resolution and costs incurred are very low in alternative dispute resolution. © Most essential advantages of alternative dispute redressal methods over rigid judicial court proceedings are its procedural flexibility. It can be conducted at any time, there is no requirement to wait for the listing of case, and in any manner to which the parties agree. It may be as normal as a meeting around a conference table or as formal as a private Court trial. Also, unlike the traditional court system, the parties have the freedom to choose the law which will apply, a neutral party to act A pre-eminent mode of dispute resolution, Negotiations is self - counseling between the parties to resolve their disputes. Unlike mediation and conciliation, it allows the parties to control the process and the solution. In India, there is no statute regarding the process of negotiation. Hence the process is one of no fixed rules but follows a predictable pattern 2. Lok Adaalats Statutorily recognized under Legal Services Authorities Act, 1987 - Lok Adaalat is a formal judicial alternative dispute resolution forum that settles cases pending the verdict of Panchayats or the courts. A platform that caters to the disadvantaged strata of the society, these are regularly organized by the State Legal Aid and Advice Boards with the help of District Legal Aids and Advice Committees. b. Enacted Laws and their roles in ADR 1. Code of Civil Procedure (CrPC) The Code of Civil Procedure,1859 under sections 312 to 325 and sections 326 and 327 dealt with arbitration suits and arbitration without court intervention respectively. The Crpc- 1908 under section 89(1) encourages cases to go for arbitration. 2. Indian Arbitration Act, 1899 Substantially influenced by the British Arbitration Act of 1899, this act expanded the scope of arbitration in India by defining the expression “submission”. 3. Arbitration (Protocol and Convention) Act, 1937 The Geneva protocol on Arbitration Clauses 1923 and the Geneva Convention on the Execution of Foreign Arbitral Awards 1927 were applied in India by this act. Its objective was for the protocol and convention to become operative in India. 4. The Arbitration Act of 1940 While the act dealt with only domestic arbitration, intervention of court was required in the entire process of arbitration. The act made provisions for dealing with arbitration without court intervention and arbitration with court intervention in pending and non-pending suits. The act is said to have defeated the purpose of ADR since the court intervention was required and it did not guarantee a speedy and effective redressal of disputes. 5. Arbitration and Conciliation Act, 1996 As established above, Arbitration and Conciliation Act, 1996 is a key progressive piece of legislation that stems from the Model law and UNCITRAL Arbitration Rules and was an attempt in modernizing the existing Arbitration Act (1940). The Act repealed all the three previous statutes. Its main objective was to make arbitration a cost effective and quick mechanism for settlement of disputes. It covers both - domestic arbitration and international commercial arbitration. c. Online Dispute Resolution The branch of dispute resolution that facilitates resolution of disputes between parties with the use of technology, is called Online Dispute Resolution. It is often referred to as an online equivalent of ADR in terms that it not only uses the conventional ADR practices of Arbitration, Mediation and Conciliation but can also augments them to cover a wide range of disputes. National Center for Technology and Dispute Resolution is the driving force behind ADR. d. ADR and Courts Program Closeness to Court Court Alternative Dispute Resolutions or Court ADR refers to application of ADR mechanisms to resolve disagreements outside traditional litigation practices. Different court ADR methods are used in settling different kinds of cases. Essentially, judges seek help of ADR experts to resolve a conflict that does not require the rigours of going to trial in a court. The court structures these ADR processes and a case makes its way into and through the court depending upon the decisions it gives. e. ADR and Cost Usually, ADR is significantly less expensive than traditional litigation. However, the cost of ADR can quickly and dramatically increase as ADR service providers exact hefty additional fees and hourly charges. Online ADR, better known as ODR or Online Resolution Disputes provides the disputing parties same services at a reduced cost. Given how most these parties are small and medium businesses, they should be eager to explore an alternatively newer option of ODR.