HISTORY AND INTRODUCTION

ADR which stands for Alternative Dispute Resolution was first originated in the USA as a drive to find an alternative to the traditional legal system. In developing countries like India where most people believe in resolving the disputes through litigation, there is an excessive burden on courts and large number of pending cases which ultimately results in dissatisfaction among people regarding the judicial system and its ability to dispense justice. And due to these reasons the introduction of mechanism of ADR becomes significant for such countries. Alternative Dispute Resolution, as the name suggests, encompasses a range of means to resolve conflicts other than that of formal litigation. The National Alternative Dispute Resolution Advisory Council (“NADRAC”) of Australia has defined ADR as “an umbrella term for processes, other than judicial determination, in which an impartial person assists those in a dispute to resolve the issues between them.” This mechanism provides speedy solutions to the disputes, prevents from increased litigation cost and strengthens the judicial system.

In this article, we will be discussing about various forms of ADR followed by a comparative study of different forms of ADR with litigation.

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DIFFERENT FORMS OF ALTERNATIVE DISPUTE RESOLUTION

In today’s world ADR is broadly categorized into two different forms – court annexed ADR and community-based Dispute resolution mechanism. Court-annexed ADR includes mediation, conciliation, and arbitration. These are the classic methods where a neutral third party assists the other parties in dispute to reach a mutually acceptable solution. Other methods of court-annexed ADR are early neutral evaluation, mini-trials etc. Whereas the community-based ADR is designed to be independent from the formal court rooms that may be inaccessible to population due to the latter’s expensive nature. In this regard India had embraced lok adalat village-level people’s courts in the 1980s, where trained mediators sought to resolve common problems that in an earlier period may have gone to the panchayat, a council of village or caste elders.

 

1. Arbitration – Arbitration is a contract-based form of binding dispute resolution. A party has the right to refer dispute to arbitration only if there is an ‘arbitration agreement’ between the parties in dispute. Parties entering into an arbitration agreement agree to refer the dispute to a neutral tribunal to decide their rights and obligations. Many a times arbitration is confused with the other methods of ADR i.e. mediation/conciliation, but these are completely different. A mediator or conciliator can only recommend outcomes and the parties can choose whether or not to accept those recommendations. By contrast, an arbitration tribunal has the power to make decisions that bind the parties. Arbitration as an alternative dispute resolution involves a series of steps, which may differ according to the area of dispute. According to the American Arbitration Association (AAA), following is the general process for arbitration: Filing Initiation, Arbitrator Selection (need not to be lawyer, can be an expert of the field of), Preliminary Hearing, Information Exchange and Preparation, Hearing, Post hearing submission and the award. The key law governing arbitration in India is The Arbitration and Conciliation Act 1996.

 

2.  Conciliation – Conciliation is an alternative dispute resolution process whereby the parties to a dispute (including future interest disputes) agree to utilize the services of a conciliator, who then meets with the parties separately in an attempt to resolve their differences.[1] Conciliation is a complete different process in all. The basic principles of conciliation as a method of ADR include being independent and impartial in nature, and maintaining the confidentiality of the parties. Following procedure is followed for resolving a dispute by conciliation:

  • Commencement of Conciliation proceedings.
  • Submission of Statement to Conciliator.
  • Conduct of Conciliation Proceedings.
  • Administrative Assistance

 

3. Mediation – Mediation is essentially a negotiation facilitated by a neutral third party. Unlike arbitration, which is a process of ADR somewhat similar to trial, mediation doesn’t involve decision making by the neutral third party. ADR procedures can be initiated by the parties or may be compelled by legislation, the courts, or contractual terms.[2]  There are two principal legislations that deal with mediation in India:

  • Code of Civil Procedure, and
  • Arbitration and Conciliation Act, 1996 (Part III deals with private mediation)

 

4. Neutral Evaluation – Neutral Evaluation can stand alone as a method to solve disputes and it can also be integrated with other methods of ADR such as mediation etc. It is a dispute resolving technique which occurs in the middle of mediation and binding adjudication. In this technique the parties or their counsel explain their case to the neutral party (usually an experienced lawyer with an expertise in the area of the dispute) who gives a non binding and reasoned evaluation on the merits of the case. The main purpose of neutral evaluation is to prevent time delay and increased amount of litigation cost. Neutral Evaluation can be court connected or private. It is informal, confidential and impartial in nature. The session for neutral evaluation can be possibly classified into four categories:

  • Case Presentation
  • Focusing
  • Assessment/valuation
  • Settlement Exploration

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COMPARATIVE STUDY OF FORMS OF ADR WITH LITIGATION

LITIGATION V/S ARBITRATION

 

Litigation

 

Arbitration

1)The term ‘litigation’ refers to the judicial method of resolving conflicts that involve legal proceedings in court of law.

 

 

1)Arbitration refers to a non-judicial dispute resolution method whereby an independent third party (arbitrator) resolves the disagreement between the parties. 

 

2)It is usually a time consuming process. 2)It provides speedy solutions to the disputes as compared to litigation.

 

3)Litigation can be civil as well as criminal in nature. 3)Arbitration is always civil in nature.
4)Litigation is a public procedure and it is not confidential in nature. 4)Arbitration is a private procedure and one of the basic principle is to maintain confidentiality of the information provided by the parties.
5)The decision taken by lower court can be appealed in higher court. 5)Decision taken by the arbitrator is final and binding.

 

LITIGATION V/S CONCILIATION

 

Litigation

 

Conciliation

1) Litigation resolves disputes through legal proceedings in the court of law. 1) Conciliation is a method of dispute resolution wherein the parties to a dispute come to a settlement with the help of a conciliator.

 

2)The parties in dispute are presented before the honorable judge at the same time and in the same courtroom. Privacy needs not to be maintained. Therefore, its process is public in nature. 2)A conciliator meets both the parties separately and then tries to reach to an amicable agreement. Hence, it is considered to be a private in nature.

 

3)Avenue for appeal is present. 3)Avenue for appeal is absent.

 

4)The neutral or the third party i.e. judge delivers the decision. 4)Conciliator can only suggest some possible solutions if there is any scope

for settlement. It is non-binding in nature unless a settlement agreement is signed.

 

 

LITIGATION V/S MEDIATION

 

Litigation

 

Mediation

1)It is a procedure where disputes are resolved formally inside the courtrooms before a judge who is the neutral third party in this case.

 

1)It is one of the ADR methods where disputes are resolved informally before the mediator who facilitates the communication between the parties.

 

2)Each party retains a lawyer. 2)Usually, only one lawyer as a neutral mediator.

 

3)The process is litigious and adversial. 3)The process is peaceful and amicable.

 

4)All information submitted before the court is a part of the public record. 4)High confidentiality is maintained during the whole process.

 

5)In this process the decision is made by the lawyers for the parties during the procedding and the final decision is taken by the judge which is not in the control of any party in dispute. 5)The parties communicate to formulate a creative solution, and if any settlement is reached or any decision is taken it is in control of the parties in dispute.

 

 

LITIGATION V/S NEUTRAL EVALUATION

 

Litigation

 

Neutral Evaluation

1)Litigation includes resolving disoute inside the courtrooms. 1)Neutral Evaluation is a dispute resolution technique at mid-point between mediation and binding adjudication – that can stand on its own or be integrated with other dispute resolution processes such as mediation.[1]

 

2)It follows a formal procedure and is public in nature. 2)It follows an informal procedure and is private in nature.

 

3)The primary objective of litigation is to serve justice. 3)The primary purpose of this method is to reduce the litigation cost by promoting communication between the parties and providing an early, realistic assessment of their case.

 

4)In litigation the neutral party is the judge who delivers judgement which can be appealed in higher court of justice if the parties are unsatisfied with the decision made. 4)The neutral party (usually a lawyer with expertise in that field) renders a non-binding reasoned evaluation on the merits of the case.

 

CONCLUSION

Conflict or dispute is an element of life and therefore it is significant for us to know how exactly should a matter be solved. By this article we can conclude that methods of ADR are advantageous over litigation when it comes to resolving the civil disputes. Though, these methods do have some disadvantages such as enforceability, lack of institutional support, lack of awareness etc. which we can overcome with minimum investment. ADR methods are really the need of the hour to regain the trust of the people in judicial system and to serve justice in the correct course of time, as ‘Justice delayed is Justice denied’.

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[1] Nishita Medha, Alternative Dispute Resolution in India A study on concepts, techniques, provisions, problems in implementation and solutions, https://www.fdrindia.org/old/publications/AlternativeDisputeResolution_PR.pdf.

[2] FindLaw, What is mediation, (Jun 20 2016), https://www.findlaw.com/adr/mediation/what-is-mediation-.html#.

[3] Government of Canada, Department of Justice, Dispute Resolution Reference Guide (Neutral Evaluation), https://www.justice.gc.ca/eng/rp-pr/csj-sjc/dprs-sprd/res/drrg-mrrc/eval.html.

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AUTHOR – SAMAKSHI PANDEY