Alternative Disputes Resolution

 Introduction

 Conciliation, mediation and arbitration are the virtues of human society and it is for the Legal Services Authorities to explore and harness these virtues. Alternative Disputes Resolution (ADR) is seen by some as having its origins in grass roots movements designed to empower ordinary people to resolve their own disputes. Whatever its origins, ADR is being adopted by Government and Courts, as a promising way to reduce costs and delay in formal justice system. The development of ADR in recent years has been extensive; the use of alternatives connected to courts and tribunals is growing rapidly. These developments have been fuelled by limited resources, increased workloads, the great length and costs of some trials and the presence of an element in the list of cases which could better be resolved by ADR.

 THE EXISTING ADR MECHANISM IN INDIA:
In view of the case arrears there was a need was felt for
establishing an efficient ADR system. The Government of India
repealed the old Arbitration Act, 1940 and introduced new and

effective arbitration system by enacting the Arbitration and Conciliation Act, 1996.
The Legal Services Authorities Act, 1987 has also been amended from time to time to update it with regard to ADR methods. The National Legal Services Authority is empowered to encourage the settlement of disputes by way of negotiations, arbitration and conciliation. Similarly several special courts, such as the family courts, now utilize ADR and even the Supreme Court has begun to refer matrimonial and other suitable matters to mediation and conciliation. Now almost all commercial contracts contain a clause for arbitration in the event of a dispute arising.
The Code of Civil Procedure, 1908 recognizes the rights of the
parties to enter in to compromise and withdraw the suits on that
basis.

Order 23, Rule 3 of CPC enables the parties either to abandon the claim or request the court to record the compromise between the parties. Under Order 14, Rule 6, an agreement may be entered in to by the parties in writing that upon a decision on an agreed question of fact or law as stated by them, the result would follow as specified in the agreement. Order 27 Rule 5-B of C.P.C. envisages a duty on the part of a judicial officer to assist the parties to arrive at a mutual settlement. Under Order 32-A, Rule 3, it is the duty of the court to endeavor to assist the parties in arriving at the settlement in respect of the subject matter of the suit or proceeding concerning family disputes.

The amendments made to the CPC by amendment Act 46 of
1999 and Amendment Act 22 of 2002 seek to institutionalize ADR
techniques in the Indian Judicial System.

By the said amendments new Section 89 has been introduced in the CPC

MECHANISMS OF ADR:
• ARBITRATION
• MEDIATION
• CONCILIATION/RECONCILIATION
• NEGOTIATION
• LOKADALAT

ADVANTAGES OF ADR:
• Reliable information is an indispensable tool for adjudicator. Judicial proceedings make halting progress because of reluctance of parties to part with convenient information. ADR moves this drawback in the system.
• In mediation or conciliation, parties are themselves prodded to take a decision, since they themselves are decision-makers.
• Formality involved is lesser than traditional judicial process and costs incurred are very low in ADR.
• It can be used any time, even when the case is pending before the court of law.
• The cost involved is less, the time required to be spent is less, the mechanism is efficient and the possibility of
avoiding a disruption is less.
• There is a huge backlog due to delays caused by innumerable reasons. ADR is seen as a method of speedy
disposal of cases and therefore a very viable option.

 Arbitration, Mediation, and Conciliation.

 Negotiation is defined in the Oxford Dictionary as “to confer (with another) with a view to agreement”. Many parties are able to resolve their disputes through direct negotiation with each other.

Assisted negotiation occurs when the parties are assisted in their negotiations by a third party of parties. Lawyers, trusted friends or other technical or professional advisers are all called upon to fulfil this role. 

 Mediation is the process by which the participants together with the assistance of a neutral person or persons, systematically isolate disputed issues in order to develop options, consider alternatives and aim to reach a consensual agreement that will accommodate their needs.

 Conciliation is a consensus based dispute resolution process in which the parties to a dispute meet with a conciliator to discuss mutually acceptable options for resolution of the dispute. The conciliator has some input into the resolution of the dispute reached by the parties in the sense that the conciliator encourages the parties to consider options for  settlement which are fair in all the circumstances, including the precedents for resolution of similar complaints within the formal justice system. The range of remedies available in conciliation is not limited to the legal remedies which may be available through court or tribunal. However, a solution which stands outside the norm and which involves significant compromise of legal rights may not be acceptable to the conciliator, who may recommend to the parties that the matter proceed to a hearing.