ADR Introduction Experience of last fifty years shows that our judiciary has failed to fulfill its obligation of delivering justice in time The two sayings that justice delayed is justice denied and justice cannot be hurried to be buried bring to the fore the idea that cases have ID: 1028616
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1. Alternative Dispute Redressal (ADR)Introduction: Experience of last fifty years shows that our judiciary has failed to fulfill its obligation of delivering justice in time. The two sayings that ‘justice delayed is justice denied’ and ‘justice cannot be hurried to be buried’ bring to the fore the idea that cases have to be decided not disposed, so if existing structures are unable to cope up with the huge burden we need to have alternative dispute resolution bodies and mechanisms. Equality and fairness cannot be compromised for expeditious disposal of cases.
2. Rationale Behind ADRLitigation is not the satisfactory mechanism always. Judges might give their verdict but it might not be acceptable to both the parties. Animosity may prevail even after disposal of a case by litigation. Parties to dispute may appeal to higher court thereby increasing the total burden on judiciary instead of reducing it.ADR mechanisms like conciliation, mediation, negotiation may be more helpful. In India, Lok Adalats have been evolved that are a blend of all the above-mentioned mechanisms.
3. ADR Mechanisms It is said that ADR originated in USA as an alternative to traditional legal system which is narrow, rigid, costly and unpredictable. In developing countries people opt for litigation leading to excessive overburdening of courts and a large number of pending cases or docket explosion as it is called. This is because negotiation or mediation does not take place before litigation. India, like many other countries, has introduced ADR system to address to such problems.
4. ArbitrationIt is a legal alternative to litigation. The parties to dispute submit to a neutral third party for resolution of dispute. The third party is the arbitrator or arbitrators. Arbitral decisions are considered final and binding. It is faster and less adversarial compared to litigation. It can be carried out between two individuals, two states, two corporations, between private individual and state, management and labour union etc. Arbitrators are not bound by legal precedents. They are not bound by strict law regarding questioning witnesses, accepting evidence, deciding remedies. It is this flexibility along with low cost that makes arbitration attractive.
5. MediationIt is a process of alternative dispute resolution mechanism where a neutral third party who is the mediator intervenes between two or more parties to come to an agreement. This is possible when there is a controversy, difference of opinion, or dispute but parties are willing to come to a positive settlement. Decision remains in the hands of parties; the mediator only helps them come to a decision. Mediators, however, have a high degree of control over the mediating process. Direct involvement of the parties in the mediation process is often the reason for its success.
6. ConciliationIt is used when parties to a dispute agree to seek the help of a conciliator. A conciliator has no legal standing. He cannot interrogate, call witness, seek evidence. He does not write a decision. Conciliation differs from mediation in the sense that here the main goal is to conciliate, pacify the parties, seek concessions from both sides so that an optimum solution is made possible. A conciliator meets the parties separately and tries to resolve their differences.Parties seldom face each other across the table. All other features of conciliation are found in mediation as well.
7. NegotiationIt is an attempt to come to a settlement through a compromise, a discussion and modifying each other’s stand. A skilled negotiator usually serves as an advocate for one party and tries to get as much as he can for his side. Here no one wins or loses. It is a case of mutual gain bargaining where each side tries to get the maximum for his side, expand the pie. It is used in cases like labour or environmental disputes.
8. Problems of Alternative Dispute RedressalHowever, ADR mechanisms are not without problems. As a result of poor relationship between the parties they may not be able to communicate well when neither party believes the other. Both the parties view the other as the wrongdoer, have their own version of the facts and reconciliation becomes almost next to impossible. Ignorance of laws and corruption are major impediments to reverting back to old community-based problem solving. To combat these problems imparting legal knowledge is a must. It can curb corruption too. Another major impediment is the fact that its decisions are not always binding.