Alternate Dispute Redressal Mechanisms (ADR) - Officers Pulse (2024)

Definition:

• Alternative Dispute Resolution (ADR) is a set of techniques for resolving disputes outside of traditional court litigation, including methods like mediation, arbitration, and negotiation, which aim to achieve amicable settlements efficiently and cost-effectively with or without the involvement of neutral third parties.

Need for ADR in India:

• Judicial Backlog: Courts in India have a huge number of pending cases, leading to delays in trial and justice. As of December 2023, there were around five crore cases pending in various courts of the country.
• Lengthy Court Procedures: The procedures in courts are lengthy and time-consuming, which adds to the delay in case resolution. The average time for disposal of a case in High Courts is around 4 years and in subordinate courts is around 6 years.
• Expensive Litigation: The traditional court system is very expensive, involving court fees, lawyers’ fees, and other associated costs, making it unaffordable for many people.
• Accessibility for the Poor and Illiterate: A large number of people in India are illiterate and poor, who find the court system too technical, lengthy, and expensive. ADR offers a simpler and more accessible alternative.
  • Parties in ADR can choose the date, place, and fee for the neutral third party by mutual consent, making the process more convenient.
• Reducing Court Burden: Relieving courts from the heavy burden of petty cases allows them to focus on more serious cases, especially those involving heinous crimes.
• Government Expenses: Litigation increases the operational expenses of courts, which are funded by money. Reducing the number of cases through ADR can help in reducing these costs.
• Preserving Relationships: Litigation often harms relationships and causes emotional stress to the litigants. ADR provides a more amicable way to resolve disputes, preserving relationships.
• Flexibility and Efficiency: ADR proceedings are flexible. Parties can choose the applicable law, conduct proceedings in any manner and language they agree upon, and settle matters in fewer meetings, thereby reducing expenses and time.

Techniques of ADR:

• Among the various techniques of ADR, Conciliation, Mediation and Arbitration are the important ones.

Conciliation:

• ‘Conciliation’ is a process in which a third party assists the parties to resolve their dispute by agreement.
• The person assisting the parties is called a Conciliator. The Conciliator is appointed by the consent of both the parties to the dispute.
• The Conciliator does not take any decision on the dispute before him/her but he/she may express an opinion about the merits of the dispute to the parties.
• Both the parties may discuss their respective points of view and with the help of the Conciliator to resolve their differences.
• Conciliation is a voluntary and non binding process in comparison to Arbitration and Litigation in courts.
• Any party may terminate the conciliation proceedings at any time without assigning any reason. The other important difference is that the parties control the process and outcome of the dispute.

Mediation:

• ‘Mediation’ is a process for resolving the dispute with the aid of an independent third person that assists the parties in dispute to reach a negotiated resolution.
• The person conducting the mediation process is called a Mediator. The mediation process, like the Conciliation process, is voluntary and is one more alternate way of resolving a dispute.
• A Mediator assists the parties to reach an agreement for resolving the dispute. He/ She does not express his/ her opinion on the merits of the dispute.
• His/her function is only to try to break any deadlock and encourage the parties to reach an amicable settlement. A Mediator does not determine a dispute between parties.

Arbitration:

• Where two or more persons agree that a dispute or potential dispute between them shall be decided in a legally binding way by one or more impartial persons in a judicial manner, that is, after recording evidence, the agreement is called an Arbitration Agreement.
• When such a dispute has arisen and is put before those impartial persons, the procedure is called Arbitration. The decision made in the arbitration is called an “award”.
• The person conducting the Arbitration proceeding is called an Arbitrator. The arbitrator hears the merits of the case and imposes the awards on the parties.
• ‘Award’ of the Arbitrator is binding on the parties and may be enforced by the Courts. There is no appeal against the Award.

Government Measures for promoting ADR:

• Legal Framework Establishment:
  • Section 89, Civil Procedure Code, 1908 recognizes and provides for Arbitration, Conciliation, Mediation, and Judicial Settlement, including Lok Adalat, as modes for dispute resolution.
  • Mediation Act, 2023 enables courts to refer disputes to mediation and sets a legislative framework for mediation.
  • Arbitration and Conciliation Act, 1996 was enacted to consolidate and amend the law relating to domestic and international arbitration and enforcement of foreign arbitral awards. It was amended in 2015, 2019, and 2021 to promote expeditious, cost-effective, and institutional arbitration while minimising judicial intervention.
  • Commercial Courts Act, 2015 amended in 2018 to introduce Pre-Institution Mediation and Settlement (PIMS) for specified commercial disputes, mandating mediation before approaching courts.
• India International Arbitration Centre (IIAC) was established under the India International Arbitration Centre Act, 2019, to provide world-class arbitration services and facilities for domestic and international disputes.
• Lok Adalats were promoted under the Legal Services Authorities (LSA) Act, 1987, to settle disputes amicably at pre-litigation and court-pending stages. Awards from Lok Adalats are binding and deemed as civil court orders.

Problems Faced in Using Alternative Dispute Resolution Mechanisms

• Lack of Awareness and Acceptance: Many people, including legal professionals and the general public, may be unaware of or have misconceptions about the benefits and processes of ADR mechanisms. This can lead to reluctance in choosing these options over traditional litigation.
• Insufficient Training: Mediators and other ADR professionals often require specialised skills that go beyond typical legal training. The current requirements for mediators to have extensive professional experience can create barriers to entry and a lack of adequately trained mediators.
• Legal and Institutional Barriers: Existing legal frameworks and institutional practices may not fully support or integrate ADR mechanisms. For example, the enforceability of mediated agreements can sometimes be unclear or cumbersome.
• Cost and Accessibility: Although ADR is often seen as a cost-effective alternative to litigation, the costs associated with hiring skilled mediators or arbitrators can still be prohibitive for some parties. Additionally, accessibility issues can arise, especially in remote or rural areas.

Measures to Address Problems in Alternative Dispute Resolution

• Enhancing Awareness and Education: Conducting awareness campaigns and educational programs to inform both the public and legal professionals about the benefits and processes of ADR.
• Improving Training and Certification: Developing comprehensive training programs for mediators and arbitrators, including co-mediation and shadow mediation techniques. Certification processes and inclusion in the degree curriculum can ensure that ADR professionals are well-equipped with the necessary skills and knowledge.
• Government’s shift to Mediation: The Governments at Union and state levels are involved in about 40% of the litigations. The Government can try to settle its disputes through ADR. ADR Centers(especially mediation centres) can be set up in different government departments.
• Standardising Practices and Procedures: Establishing clear guidelines and standards for ADR processes to ensure consistency and reliability. This includes creating uniform procedures for mediation and arbitration that can be adopted nationwide.
• Strengthening Legal Frameworks: Ensuring that the legal system supports ADR mechanisms through clear laws and regulations. This includes making mediated agreements easily enforceable and integrating ADR processes more seamlessly into the judicial system.

Justice DY Chandrachud, Chief Justice of India, gave this slogan: ‘Mediate and not litigate’. ADR mechanisms can help in increasing the accessibility of timely justice for different sections of the Indian society.

Source: https://www.nios.ac.in/media/documents/SrSec338New/338_Introduction_To_Law_Eng/338_Introduction_To_Law_Eng_L15.pdf

https://pib.gov.in/PressReleasePage.aspx?PRID=2003844#:~:text=The%20enabling%20legal%20framework%20for,including%20settlement%20through%20Lok%20Adalat.

https://www.thehindu.com/opinion/op-ed/adopting-a-transformative-vision-for-mediation/article68171975.ece