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We are all well aware of the fact that the Indian Judicial System is one of the oldest judicial systems in the world. Given the vast Indian population, which is diverse in terms of geography, religion, race, occupation, language, social life, and other factors, differences and conflicts are inevitable to arise. As a result, the Indian judiciary must be strong and well-equipped to resolve conflicts and deliver swift justice in order for the country to function smoothly.
The fact, however, appears to be exactly the reverse. Our justice system is dealing with a number of major difficulties, including slow delivery of justice, the nomination of judges who are entangled in controversies, and ineffective disciplinary measures. The enormous pendency has become a problem for the judiciary to expedite judgments. To cope with a scenario like this ADR (Alternative Dispute Resolution) may be a useful tool.
WHAT IS ALTERNATIVE DISPUTE RESOLUTION (ADR)?
Alternative Dispute Resolution (ADR) is the process of resolving disagreements outside of the courtroom. It is a method of resolving a disagreement without resorting to litigation. With the assistance of a third person, the parties can reach an agreeable agreement. Arbitration, Mediation, Conciliation, Negotiation, or Lok Adalat are all options for resolving a conflict.
CONSTITUTIONAL PROVISIONS FOR ALTERNATIVE DISPUTE RESOLUTION:
- Articles 14 and 21 of the Indian Constitution, which deal with equality before the law and the right to life and personal liberty, respectively, laid the groundwork for ADR in India.
- ADR also aims to meet Article 39-A of the Constitution’s Directive Principle of State Policy pertaining to Equal Justice and Free Legal Aid.
- Arbitration and Conciliation Act 1996:
Section 30 of the Arbitration and Conciliation Act of 1996 allows arbitrators to employ mediation, conciliation, or other processes to facilitate settlement at any point throughout the arbitration proceedings if the parties agree..
- Legal Services Authorities Act 1987:
The Lok Adalat System was established under Section 20 (1) of The Legal Services Authorities Act, 1987, for the purpose of resolving disputes in a cost-effective and timely manner, as well as in the spirit of compromise through a give-and-take formula.
- Civil Procedure Code, 1908:
Section 89 of the Civil Procedure Code, 1908 makes it possible for Arbitration proceedings to take place in accordance with the Acts stated above.
- Indian Arbitration Act, 1940:
The 1940 Arbitration Act only applied to domestic arbitration. The court’s participation was also required under this Act during the phases of arbitration of the tribunal that was referred to before the dispute, during the procedures, and after the judgment was made.
- Indian Arbitration Act, 1996 :
It was enacted to update the 1940 Indian Arbitration Act. In 1996, the government passed the Arbitration Act, which made it easier for citizens to resolve disagreements by making it less technical. It attempted to correct flaws and introduce a new arbitration statute.
- Civil Procedure Code (Amendment) Act, 1999:
It was an Act made to modernize the Indian Arbitration Act of 1940. The parliament enacted the Arbitration Act in 1996 to make it less technical and useful for the people to resolve conflicts. It tried to remove defects and bring out a new arbitration law.
VARIOUS METHODS OF ALTERNATIVE DISPUTE RESOLUTION:
Arbitration is, at its heart, a method of resolving disagreements. Arbitration is the private resolution of a disagreement by a neutral third party. An individual arbitrator or a tribunal may be used in an arbitration proceeding. Arbitration cannot take place without a valid arbitration agreement in place prior to the occurrence of a dispute. Parties to a disagreement send it to one or more arbitrators in this method of conflict settlement. The arbitrator’s judgment is binding on the parties, and it is referred to as an “Award.” The goal of arbitration is to reach a fair resolution of a dispute outside of court, saving time and money. It is practiced under Arbitration and Conciliation Act, 1996
General Principles Of Arbitration:
- Arbitration’s goal is to get a fair settlement of disputes by an unbiased third party without wasting time or money.
- Parties should be free to agree on how to resolve their disagreements, subject only to the protections required in the public good.
- Courts should stay out of it.
Advantages Of Arbitration:
- Parties can choose a person as an arbitrator to solve their disputes. For example: If the dispute is regarding IPR, a person in the similar field can be chosen as an arbitrator by the parties so that the evidence will be more readily understood.
- Arbitration procedures may generally be heard faster than court proceedings. In addition, the arbitration hearing should be shorter, and the preparation work should be less strenuous.
- Arbitration proceedings are private, and final rulings are not made public or easily available.
- Hearings are scheduled at times and locations that are convenient for the parties, arbitrators, and witnesses.
- In general, there is no right of appeal in arbitration.
Mediation is a private procedure in which the parties appoint an independent and neutral third party (the mediator) to assist them in reaching a negotiated solution of their disagreement, mostly through organized settlement discussions. The procedure can be carried out either before or simultaneously with formal legal or arbitration procedures. The mediator is not a court and does not have the authority to issue binding rulings. Rather, he or she will work with the parties to examine settlement possibilities and try to negotiate a solution. Mediation’s main objective is to establish an agreement that ends the conflict on terms that are agreeable to all parties. The mediation process is regulated by the Code of Civil Procedure, 1908
The process of mediation works in various stages. These are,
- Opening statement
- Joint session
- Separate session and
ROLE OF THE MEDIATOR:
The mediator is in charge of the procedure and encourages the parties to communicate openly and honestly. He or she does not, however, have the authority to issue a document production order or make a final decision. As a result, the parties retain control over the outcome, and in order to be bound, they must reach an agreement and sign a formal settlement agreement. The parties are allowed to leave the mediation until they achieve an agreement. In the case of failure to reach an agreement through negotiation in mediation, the mediator uses different Reality check techniques like:
Best Alternative to Negotiated Agreement (BATNA): It’s the greatest potential conclusion that all parties can come up with or envision. It’s a good circumstance since each party considers what their best-case scenario is.
Most Likely Alternative to Negotiated Agreement (MLATNA): In order to have a successful negotiation, the mediator must evaluate both parties and come up with the most likely outcome. Depending on the bargaining scenario, the conclusion is not always in the middle, but somewhat to the left or right of the center.
Worst Alternative to Negotiated Agreement (WATNA): It’s the worst-case scenario a side envisions for what may happen during a discussion.
Conciliation is a voluntary process in which the parties concerned are free to reach an agreement and try to resolve their disagreement through conciliation. The conciliation procedure is adaptable, allowing parties to set the timing, structure, and content of the proceedings. These hearings are almost never open to the public. They are interest-based because the conciliator will consider not only the parties’ legal positions, but also their business, financial, and/or personal interests when recommending a solution. The Conciliation process is regulated by the Arbitration and Conciliation Act, 1996. The decisions are not binding on the parties. Conciliation as an ADR is available only to the existing dispute
The party who initiates conciliation must give the other party a formal invitation to conciliate under this section, which must include a brief description of the issue. When the other party accepts the offer to conciliate in writing, the conciliation process begins. There will be no conciliation procedures if the opposing party refuses the invitation.
DIFFERENCE BETWEEN CONCILIATION AND MEDIATION:
Mediation is a method of settling conflicts between parties in which a third party helps them reach an agreement. Conciliation is a kind of alternative conflict resolution in which a neutral third party is hired to persuade the parties to achieve an agreement.
In mediation, the third party serves as a facilitator, but in conciliation, the third party serves as a facilitator, assessor, and intervener.
Negotiation is defined as any kind of direct or indirect communication in which parties with opposing interests debate the shape of any cooperative action they may take to manage and eventually settle their disagreement. Negotiations can be used to address an issue that has already arisen or to set the basis for a future relationship between two or more parties. Negotiation has also been considered the “preeminent form of dispute settlement,” which is unsurprising considering its widespread use in nearly every area of daily life, whether at the individual, institutional, national, or global level.
CHARACTERISTICS OF NEGOTIATION:
5. LOK ADALATS:
According to Section 19 of the Legal Services Authorities Act 1987, any state authority, district authority, Taluka Legal Service Committee, High Court Legal Services Committee, or Supreme Court Legal Services Committee may hold Lok Adalats to resolve ongoing matters more quickly and cheaply. It is a government-instituted system that uses conciliation, negotiation, and compromise to assist individuals with social justice. It is chaired by a retired judge and two more members, ideally a lawyer and a social worker. The Lok Adalat does not charge any court costs, making it really a “people’s court.”
Under section 21 of the LSA, binding force is given to the awards granted by the Lok Adalats, without offering an appeals procedure. The primary aim of Lok Adalats is to reach an amicable agreement between the two parties in the dispute. It is necessary that the solution reached by the Lok Adalat should be acceptable to both parties. Cases relating to claims for compensation in motor accidents, compensation for land acquisition cases, and compoundable criminal cases are best suited for using the process.
Finally, Alternative Dispute Resolution (ADR) is an excellent way to obtain justice because Alternative Dispute Resolution is a simple way to settle an issue since it is less expensive, faster, has more competence, is more accessible, provides conciliation between parties, is less formal, and is less hostile.