Alternative Dispute Resolution (ADR) refers to the means of settling disputes without going through the adversarial mode of legal procedures. The ADR mechanism enables settlement of disputes in many formal and informal ways but ADR emphasises mainly on the settlement of disputes by local community initiatives. It is an age-old tradition of our society through which disputes are resolved amicably. It is not institutionalised, but both the community members and the disputants accept it. ADR includes dispute resolution processes and techniques that act as a means for disagreeing parties to come to an agreement. ADR basically is an alternative to a formal court hearing or litigation. It is a collective term for the ways that parties can settle disputes, with (or without) the help of a third party.
Alternative Dispute Resolution In Perspective
ADR generally refers to other processes of resolving dispute outside courtroom litigation. Major ADR processes include Negotiation, Mediation, Conciliation, Arbitration, Early Neutral Evaluation (ENE) and other Hybrids. Contrary to the wide held impression, ADR is not a substitute for litigation. It complements litigation. ADR is not just a solution to the problem of congestion in courts. It is a necessary part of any efficient framework for dispute resolution and access to justice. Thus, even where there are no delays in litigation, ADR is still a vital component of justice delivery in any society that seeks to effectively guarantee and protect citizen’s rights. This is so because, it is not all disputes that are about legal right and wrong, which is the foundation on which litigation is largely based. This is particularly important in the protection and enforcement of social and economic rights. Most of the issues that usually arise in this area cannot effectively be resolved by the application of strict legal principles. Issues relating to psychological needs and values, which most social rights involve, are better resolved by ADR than litigation. The primary objective of every legal system is to render justice and access to justice is one of the cherished goals, which is the sine qua non for the existence of a democratic and civilized state. It is, therefore, one of the prime functions of a welfare state to provide adequate dispute-resolution mechanisms and indeed in a democratic society people must have effective access to such dispute resolution mechanisms as the maxim ‘ubi jus ibi remedium’ cannot be permitted to be reduced to an empty promise
The main characteristics of ADR processes include:
- The preservation of relationship and the preservation of reputation;
- Flexibility of procedure as it is determined and controlled by the parties in the dispute;
- Suitability for multi-party dispute;
- Durability of agreement;
- Practical solutions tailored to parties interests and need
- Parties choice of neutral third party to direct negotiations / adjudicate;
- It provides high party involvement / participation;
- It is voluntary, private and less complexity;
- Confidentiality and non-judgmental;
- Collaborative and likelihood of speed of settlement.
Various Forms Of ADR Processes
There are various forms of ADR mechanisms that exist in India for resolving disputes outside the courts. It is the nature of the dispute and relation of the parties which decide the choice of ADR method either by arbitration, conciliation, mediation, Lok Adalat etc.
- Negotiation: 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 of the dispute. It is the primary method of alternative dispute resolution.
- Conciliation: In this case, parties submit to the advice of a conciliator, who talks to the each of them separately and tries to resolve their disputes. Conciliation is a non-binding procedure in which the conciliator assists the parties to a dispute to arrive at a mutually satisfactory and agreed settlement of the dispute. Conciliator assists the disputing parties to explore potential solutions and find a mutually acceptable solution by lowering tensions and improving communications.
- Mediation: A non-binding procedure in which an impartial third party known as a mediator tries to facilitate the resolution process but he cannot impose the resolution, and the parties are free to decide according to their convenience and terms. Disputants may use mediation in a variety of disputes, such as commercial, legal, diplomatic, workplace, community and family matters.
- Arbitration: It is a method of resolution of disputes outside the court, wherein the parties refer the dispute to one or more persons appointed as an arbitrator(s) who reviews the case and imposes a decision that is legally binding on both parties. In arbitrations, disputes are resolved, with binding effect, by a person or persons acting in a judicial manner in private, rather than by a national court of law that would have jurisdiction but for the agreement of the parties to exclude it. The process of arbitration can start only if there exists a valid Arbitration Agreement between the parties prior to the emergence of the dispute
- Lok Adalat: The concept of Lok Adalat is not a new phenomenon, but an ancient concept is given now statutory basis. One of the unique features of Lok Adalat is that dispute are settled summarily without going through the complexities of legal proceedings of the routine Courts
To make ADR more effective, extensive, and pro-active, coordination is needed among different agencies and by the following measures:
- Creating awareness about ADR
- Spreading the success story of ADR
- Encouraging NGOs to become involved in ADR
- Involving the Bar Associations in ADR
- Providing training for mediators
- Matching Government and NGO efforts.
Benefits/Outcome Of Use Of ADR For Social Justice
Apart from its huge potentials for promoting effective access to social justice, some of the measurable benefits of mainstreaming ADR into Justice Delivery in Nigeria include:-
- Build (rebuild) a culture of amicable settlement of differences and peaceful coexistence;
- Promote access to justice, especially for the poor and needy who cannot afford the cost of formal justice;
- Create substantial reduction in the number of cases that clog the court system and cause undue delays in court litigation:
- Contribute to prison decongestion by reducing the number of misdemeanors and minor offences that clog the criminal justice system;
- Promote law and order; and enhance police efficiency by reducing the amount of complaints that stretch the limited resources of the police;
- Reduction and effective management of Work-Place Conflicts; Labour/Trade Dispute and Industrial Unrests;
- Contribute to reduction of ethnic, religious, social and political conflicts;
- Strengthen public security; peace and development; rule of law and sound Democratic culture and
- Promote international best practices and create enabling environment for foreign investment.
ADR, however, is not intended to supplant altogether the judicial system and it only offers an additional mode of dispute resolution and is therefore sometimes referred to as Additional Dispute Resolution. In fact the judicial system and ADR need to operate collaboratively so that the ultimate goal of justice for all is achieved