Alternative Dispute Resolution(ADR)
About Alternative Dispute Resolution
Alternative Dispute Resolution has wide varietey of processes, practices, and techniques. Arbitration and mediation used most frequently. There are some more alternative dispute resolution such as Minitrials, early neutral evaluations, and summary jury trials. Parties opt ADR procedures to save time and money rather investing them in full blown civil litigation.
The following Acts governs or covers Alternative dispute resolution:
- Arbitration and Conciliation Act, 1996.
- Legal Services Authorities Act, 1987.
- Section 89 of the Civil Procedure Code, 1908.
It is an attempt to provide machinery which is capable of providing an alternative to the conventional methods of resolving disputes. Alternative dispute resolution helps to resolve the disputes of contracting parties. It has started gaining ground as against litigation.
Position of Alternative Dispute Resolution in Constitution
- Alternative Dispute Resolution was first started for finding solutions to the perplexing problem of burden on courts. It was an attempt made by the legislators and judiciary to achieve the “Constitutional goal” of achieving Complete Justice.
- Alternative Dispute Resolution in India was founded on the Constitutional basis of Articles 14 and 21 which deal with Equality before Law and Right to life and personal liberty respectively.
- ADR also tries to achieve the Directive Principle of State Policy relating to Equal justice and Free Legal Aid as laid down under Article 39-A of the Constitution.
Advantage of Alternate Dispute Resolution:
Following are the Advantages of Alternative dispute resolution:
- Less expensive
- Consumes less time.
- Free from technicalities.
- Parties can freely discuss their difference of opinion.
- Parties feels that there is no losing or winning at the same time they feel that their grievance is redressed and the relationship between the parties is restored.
Types of Alternative Dispute Resolution In India
The courts can refer the dispute which can be resolved under Alternative dispute resolution. Following are the types of ADR :
Arbitration” means any arbitration whether or not administered by permanent arbitral institution”
ICADR, Official site of “The International Centre for Alternative Dispute Resolution” Retrieved on 21 st December 2017
It is the private, judicial and also an independent body. Arbitration resolves disputes between two parties. It is a powerful means of resolving disputes between the organisation and its employees. In this process, arbitrator is an independent person who analyses the matter and also considers statement of both parties. It also collects necessary data and make recommendations which are binding on the parties concerned. Arbitration process proved successful for resolving disputes between labour and management. The contract between parties contain arbitration clause. When dispute arises between parties the arbitration clause comes into force. The arbitrator decision is also annexed with written opinion . Further, the procedure is comparatively expeditious than courts and tribunals. However, the process is a bit expensive, and if there is a mistake in selecting an arbitrator, the judgement becomes arbitrary.
There are two different types of arbitration: private and judicial arbitration. Private arbitration is the most common form of ADR. Private arbitration is the primary method of resolving the disputes of labor between unions and employers. Judicial arbitration, sometimes called court-annexed arbitration, decision is not binding on parties. Any party dissatisfied with the arbitrator’s award may choose to go to trial rather than accept the decision. Judicial arbitration is usually follow the rules or regulation laid down by the statue.
Conciliation is also alternative dispute resolution which helps in resolving the disputes between the parties. In this, the representatives of the parties come together to resolve the dispute by third person(Arbitrator). Any one of the party can appoint the conciliators by mutual agreement. There can be one or more conciliation officer or conciliator. If both the parties reject conciliation offer then conciliation will not take place. The primary duty of the conciliator is to mediate in and advocate settlement of industrial disputes. Further, he/she is also responsible for holding conciliatory proceedings, investigating disputes, sending the report of settlement to Appropriate Government ( Central or State government) Conciliation is a method of resolving the dispute, wherein an independent person, who meet the parties jointly and severally and helps them to arrive at negotiated settlement or resolve their differences.
Mediation is a rapidly growing ADR technique. It helps the parties to resolve the matter of dispute and settle the matter. A neutral intermediary helps the parties to negotiate and solve the problem. Whose job it is to facilitate a voluntary, mutually acceptable settlement. A mediator’s primary function is to recognize issues, search possible bases for agreement, discuss the consequences, and encourage each party to negotiate with other one. However, unlike arbitrators, mediators lack the power to impose a decision on the parties if they fail to reach an agreement on their own.
The conciliation and mediation terms are not interchangeable. Both work effectively when there is involvement of long term relationship (husband and wife, also wholesaler and retailer, and manufacturer and distributor). Mediation and conciliation also work well for “polycentric” problems.
A minitrial is a process where the representatives of parties present their case or dispute to a neutral intermediary . Expert witnesses (and less frequently, lay witnesses) used in presenting the case. After the presentation, representatives of parties attempt to negotiate a settlement of the dispute.
Summary Jury Trials
Summary jury trials are advisory panel of jurors who will try the dispute of the parties without facing adverse decision of civil court. The purpose of the summary jury trial is to facilitate pre trial for settling the disputes by way of negotiation. Like minitrials, summary jury trials give the parties a chance to reach a preliminary assessment of the strengths and weaknesses of their positions and proceed with negotiations from a common starting point, namely the advisory jury’s findings.
Early Neutral Evaluation
In Early neutral evaluation, a neutral intermediary is appointed to hear the facts and arguments of counsel and the parties. After the hearing, the intermediary gives an evaluation of the strengths and weaknesses of the parties’ positions and the parties’ potential exposure to liability for money damages. The parties, counsel, and also intermediary engaged in discussions designed to assist the parties in identifying the agreed upon facts, isolating the issues in dispute, locating areas in which further investigation would be useful, and devising a plan to streamline the investigative process. The objective of early neutral evaluation is to obtain an early assessment of the parties’ dispute by a neutral intermediary who has no interest in the outcome of the dispute but who has sufficient knowledge and experience.