According to National Judicial Data Grid (NJDG) there are over 3.7 million cases which have been pending before the subordinate courts for over a decade. Despite these statistics as well as the cost involved in a legal dispute, why should disputant parties choose not to take the traditional legal route? Most important, is there any alternative to this traditional route?
The solution to this problem is the mechanism of ‘Alternative Dispute Resolution’ (ADR). Over the years, ADR has been recognized as an effective mechanism to solve disputes as it allows parties to relook at mutual interests and reach an amicable settlement without actually going to the court. Hence, ADR can be said to complement the judicial process. Even, the apex court in the case of Afcons Infrastructure vs. Cheruan Varkey Construction Co. Ltd. & Ors have emphasised on the importance and need of ADR, especially in commercial disputes.
Despite such a track record, Alternative Dispute resolution has a very limited success rate in India. It was noted that in a period of 11 years (2008-2019), merely 1075 cases were referred to the Civil Court Mediation Centre in Ahmedabad, Gujarat.
Although, India is rapidly moving towards modernization, the main reason that hampers the growth of ADR is the lack of awareness among the masses. It has been seen that despite such a long wait for justice, people still prefer to opt for litigation rather than out of court settlement, which is a fast, efficient and a cost effective alternative.
ADR can be no exception to the general rule that any implementation is confronted with problems. Thus, the lack of awareness regarding ADR in India can be attributed to the following:
1. Legal Education: It would not be wrong to say that law schools train students more on conflict rather than enhancing their reconciliation and arbitration skills. ADR as a subject is not being taught and discussed in law schools. Hence, for law schools, there is an urgent need to recognize the needs of the changing market place. In short, a revise in curriculum is needed to train students to become skilled and effective mediators and arbitrators.
2. Attitudes: The traditional approach to resolve conflicts have contributed to this problem as well. To adjust to the spirit of ADR which is a WIN-WIN situation, there is need to change the WIN-LOSE spirit. Hence, the underlying problem is that neither the public sector nor the private sector is infused with the spirit of ADR.
3. Ignorance: Though the legislators have time and again tried to make effective laws in reference to ADR, but its implementation at grass root level have not been a success. For Instance, one can see ADR being practiced by large corporates but Lok Adalat, though an old age concept has not been implemented properly. Hence, for success of ADR in India, there is need to apply the laws in
both its letter and spirit.
4. Underlying the Client’s Interest: A lawyer should not only keep in mind his or her clients interest but also try to find as to why the dispute exists and which resolution procedure is likely to help the client. Thus, the lawyers themselves should put forward this alternative in front of their clients to encourage them for an out of court settlement. Furthermore, an ineffective communication between the lawyer and the client can devoid the client from an amicable settlement.
To conclude, an attitudinal change towards ADR will surely boost its usage and it will relief some burden on the courts. The need of creating awareness for the same is imperative. This should start from laws schools to the workforce currently in practice to encourage client to choose this alternative.
AUTHOR – JANVI JOHAR