Alternative dispute resolution (ADR)
What is the Alternative Dispute Resolution (ADR) mechanism?
- Alternative dispute resolution (ADR) usually denotes a wide range of dispute resolution processes that parties can use to settle disputes, without going through litigation.
- ADR is considered a superior method of dispute resolution due to its ability to reach a consensus and give humanitarian concerns a role in settling disputes.
Advantages of ADR
- More suitable for multi-party disputes
- Reduced financial burden for the litigants
- Faster resolution of disputes
- Flexibility of process
- Increased freedom for the parties
- Method of resolution can be chosen by the litigants
- Provides more practical solutions
- Wider range of issues can be considered
- Based on the concept of Justice rather than law
- Confidentiality can be maintained since procedure is not part of public records
- Reduction in risk to the litigants
- No need of lawyers since litigants can directly argue their cases
ADR is not applicable in cases where:
- There is a need for precedent
- There is a need for court orders
- There is a need for interim orders
- There is a need for evidential rules
- There is a need for enforcement
- There is a power imbalance between parties
- There are quasi-criminal allegations
- There is high level of complexity in the case
- There is a need for live evidence or analysis of complex evidence
- There is a need for expert evidence
Types of Alternative Dispute Resolution (ADR) mechanisms
- In case of arbitration, a third party called arbitrator will decide on the final decision.
- Decision of the arbitrator is binding on all the parties and their decision is called ‘Award’.
- In case of arbitration there is an exchange of documents and information in a process called ‘Discovery’.
- All the parties are then called together to give their arguments and evidence in a hearing, after which the final ‘Award’ is given.
- In mediation the third party tries to bring all the disputants to reach an agreement.
- Mediation is an easy and uncomplicated party centered negotiation process where the third-party acts as a mediator to resolve dispute amicably by using appropriate communication and negotiation techniques.
- The entire process is controlled by the parties while the mediator just acts as a facilitator to ensure smooth functioning of the process.
- The mediator helps the parties reach the most realistic, logical and workable result.
- Conciliation is a form of arbitration but it is less formal in nature.
- While the conciliator is the one to give the final ‘award’, the decision cannot be forced on a party who does not want to accept it.
- Conciliation agreement is an extemporary agreement that must be entered into after the dispute occurs and not before.
- Negotiation is a non-binding procedure in which discussions between the parties are initiated without the intervention of any third party with the object of arriving at a negotiated settlement to the dispute.
- It is the most common method of alternative dispute resolution.
Constitution and ADR
- Article 39 A says that “The State shall secure that the operation of the legal system promotes justice, on a basis of equal opportunity, and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities.”
- The Legal Services Authorities Act 1987 was enacted by the Parliament to fulfil this DPSP.
- The Legal Services Authorities Act created the National Legal Services Authority of India (NALSA) on 9 November 1995.
- Lok Adalat is a Statutory Organization under the Legal Services Authorities Act, 1987.
- Lok Adalat is called ‘People’s Court’ presided over by a sitting or retired judicial officer, social activists or members of Legal profession as the chairman.
- National Legal Service Authority (NALSA) is responsible for conducting Lok Adalats on a regular basis.
- Cases pending in the court can be referred to the Adalat and any court fee originally paid in the court when the petition filed is also refunded back to the parties if a successful settlement is reached.
- Lok Adalats do not have any jurisdiction to deal with cases of non-compoundable offenses.
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