ROLE OF ADR IN MODERN DAY SOCIETY

This article was written by Raj Krishna, a student of Chanakya National Law University.

1. INTRODUCTION

“I realized that the true fiction of a lawyer was to unite parties… A large part of my time during the 20 years of my practice as a lawyer was occupied in bringing out private compromise of hundreds of cases. I lost nothing thereby- not even money, certainly not my soul.”

– Mahatma Gandhi

One of the major drawbacks of Indian legal system and law enforcement agencies has been a lack of effective delivery of legal remedies to the people in need. Pending cases are comparatively much more than the cases actually settled. The main reason behind such a phenomenon is that increase in the number of offences as well as time taking to solve the cases from the part of the judiciary. In such situation, Alternative Disputes Resolution mechanism plays a very important role in resolving disputes among people which is less important when compared to serious offences so that court can save its valuable time as well as parties affected will be delivered with an effective solution for their disputes.[1] But, ADR is also not immune from criticism. Some see it as waste of time; whereas others recognize that ADR should only be initiated in order to check what is the minimum offer that the other party would accept, if the offer is more than switch back to the traditional legal system.

2. HISTORICAL BACKGROUND OF ADR

Arbitration as an alternative to dispute resolution by municipal courts has been prevalent in India since the Vedic times. Even during Muslim Rule, Arbitration was practiced in India. An arbitrator at that time was required to posses the qualities essential for a Kazee [An official Judge who presided over a court of law]. However, he was a sub-ordinate to Kazee and his decision was subject to approval of Kazee. [2]

With the coming of East India Company, ADR gained more popularity. Further the British government gave legislative form to the law of arbitration by promulgating regulations.

Some of the ADR legislations which were promulgated at the time of British Era were:

*Bengal Regulation Act, 1772 and 1781.

*Indian Arbitration Act, 1899 [This Act was based upon the British Arbitration Act of 1889].

*Code of Civil Procedure, 1908 (Section 89)

* Arbitration (Protocol and Convention) Act, 1937: This Act was enacted in India in order to implement and give effect to the Geneva Protocol on Arbitration Clauses 1923 and the Geneva Convention on the Execution of Foreign Arbitral Awards 1927.

*The Arbitration Act of 1940: It dealt with the stages involved in Arbitration proceeding. The Act however dealt with only Domestic Arbitration.[3]

POST-INDEPENDENCE LAWS

*The Arbitration and Conciliation Act, 1996: The Government of India enacted this act with an aim to bring the 1940 Act in accordance with the present day requirement and to make the domestic law in sync with the several international protocols and conventions which happened during 1960-90.

However due to Bhatia and BALCO judgments, the 1996 Act underwent certain amendments in 2015 [Arbitration and Conciliation (Amendment) Act, 2015].[4]

3. MODES AND PRACTICES OF ADR IN INDIA

Following are the modes of ADR that are commonly practiced in India:

1. Arbitration: It is a private, usually informal and non-judicial trial procedure for adjudicating disputes which is done by an arbitral tribunal and the award passed by the tribunal is binding upon the parties.
2. Mediation:  It is a process wherein the mediator who is an external person neutral to the dispute, works with the parties to find a solution which is acceptable to all of them. The basic motive of mediation is to provide the parties with an opportunity to negotiate, converse and explore options aided by a neutral third party, to exhaustively determine if a settlement is possible.
3. Conciliation: Conciliation is relatively unstructured method of dispute resolution in which a third party facilitates communication between the parties in an attempt to help them settle their differences.
4. Negotiation: Negotiation is basically self-counseling between the two parties to settle their dispute. However, in India, Negotiation doesn’t have any statutory recognition.

Apart from the above four, Lok Adalat and Online Dispute Resolution are also very popular in India.[5]

1. ADVANTAGES OF ADR

The advantages of ADR are as follows:

1.  In the case of arbitration, parties have far more flexibility to select what procedural and discovery rules will apply to their dispute. They have a choice, which is not there in case of traditional legal system.
2. The parties can often select the arbitrator or mediator that will hear their case, typically selecting someone with expertise in the substantive field involved in the dispute.
3. A matter under ADR gets decided quickly. There is a time period under which the matter needs to be decided [Post 2015 Amendment the time period is 1 year which can be extended more by 6 months].
4. It is less expensive as compared to traditional legal system.
5. The results can be kept confidential which is the most important thing.[6]

5. CONCLUSION AND SUGGESTIONS

Alternative Dispute Resolution has turned out to be successful in reducing the burden of Traditional Court in India. More and more cases go to ADR mechanism because of speedy justice and cost effectiveness. However, there are still some discrepancies in the modern system which needs to be sorted out like more ADR centers should be created for settling disputes out-of-court. Secondly we need to take the ADR mechanism beyond the cities. Thus, Gram Nyayalayas should process 60 to 70 percent of rural litigation leaving the regular courts to devote their time to complex civil and criminal matters.

Alternate dispute resolution has provided people new avenues for settling disputes. The settlement of disputes by ADR has acquired good popularity among the public. Thus the ADR movement needs to be carried forward with greater pace as it will considerably reduce the load on the court and will help in achieving the goal of rendering social justice to the parties of the dispute.[7]

[1] Concept of ADR In The Present Legal System Of India, I Pleaders (April 18, 2018, 11:30 p.m.), https://blog.ipleaders.in/concept-adr-present-legal-system-india/

[2] O P Malhotra &Indu Malhotra, the Law and Practice of Arbitration and Conciliation (2nd ed., 2006).

[3] Id.

[4] Id.

[5] Code of Civil Procedure, 1908, Sec. 89.

[6] Mark Albright, The Advantages and Disadvantages of ADR, Albrightstoddard (April 20, 2018, 11:00 p.m.), http://albrightstoddard.com/advantages-disadvantages-adr/

[7] Supra Note 1.