Every system has certain limits of performance based on the capacity of its components. Too many of overload tends to result in mediocre performance, quality deterioration, system break down and ultimate collapse.
The concept of Conflict Management through Alternative Dispute Resolution (ADR) has introduced a new mechanism of dispute resolution that is non adversarial. A dispute is basically ‘lis inter partes’ and the justice dispensation system in India has found an alternative to Adversarial litigation in the form of ADR Mechanism. Justice delivery institutions in most of the developing countries in the world are currently confronted with serious crises, mainly on account of delay in the resolution of the disputes particularly the delay in disposal of the commercial and other civil matters. We must admit that this situation has eroded public trust and public confidence in the justice delivery institutions. It obstructs economic growth, development and social justice to the citizens in a country. The crises therefore, call for an urgent solution. The cause for such backlog of cases is institutional and the delay in disposal of the cases, is due to procedural laws. Administrative institutions have failed to monitor the status, substance and pace of litigation in the courts.
“It is the spirit and not the form of law that keeps the justice alive.”
L.J Earl Warren
Alternative Dispute Resolution (ADR) is an effective substitute to resolution of disputes through courts under prevailing procedure (Cr.P.C. for criminal cases and C.P.C for civil cases). It is the most beneficial, expeditious, inexpensive and easy way of resolving disputes. It is satisfactory for litigants, being based on facts rather than technicalities of law. In courts of law a litigant may take the benefit of legal technicalities despite his weaknesses on the factual side. In courts, those who can afford to hire the services of more qualified and experienced lawyers may be on a better footing as compared to their rival litigants not having the financial means to do the same. The process of ADR, by and large, has no place for legal technicalities.
New methods of dispute resolution such as ADR facilitate parties to deal with the underlying issues in dispute in a more cost-effective manner and with increased efficacy. In addition, these processes have the advantage of providing parties with the opportunity to reduce hostility, regain a sense of control, gain acceptance of the outcome, resolve conflict in a peaceful manner, and achieve a greater sense of justice in each individual case.
Prolonged litigation not only causes prolonged agony and suffering of litigants, it also adversely affects economic activity. In many cases, genuine litigants cannot obtain relief promptly, and the delay in justice would amount to denial of justice. If a genuine litigant gets redressal of his grievances promptly, he would be able to pursue his business actively, which may otherwise suffer. It is well known that civil litigation may last for decades and involve many generations. Prolonged proceedings also result in multiplicity of litigation due to offshoots from the basic dispute. With a view to avoiding lengthy litigation and heavy expense, parties to a business deal generally provide for resolution of disputes through an arbitrator or mediator in their contracts. To save time and money, sensible people make efforts to resolve disputes through ADR before approaching courts of law.
The objective of ADR as the phrase itself suggest is to resolve disputes of all sorts outside the traditional legal mechanism i.e. courts/judicial system. There is a broad spectrum ranging from the purely consensual mode of resolution of disputes to an executive procedure like arbitration, conciliation or negotiation.
The rising popularity of ADR can be explained by the increasing caseload of traditional courts, the perception that ADR imposes fewer costs than litigation, a preference for confidentiality, and the desire of some parties to have greater control over the selection of the individual or individuals who will decide their dispute. ADR is generally classified into at least four subtypes: Negotiation, Mediation, Collaborative law and Arbitration. Sometimes a fifth type, conciliation, is included as well, but for present purposes it can be regarded as a form of mediation.
The system of dispensing justice in India has come under great stress for several reasons mainly because of the huge pendency of cases in courts. In India, the number of cases filed in the courts has shown a tremendous increase in recent years resulting in pendency and delays underlining the need for alternative dispute resolution methods. It is in this context that a Resolution was adopted by the Chief Ministers and the Chief Justices of States in a conference held in New Delhi on 4th December 1993 under the chairmanship of the then Prime Minister and presided over by the Chief Justice of India. It said: "The Chief Ministers and Chief Justices were of the opinion that Courts were not in a position to bear the entire burden of justice system and that a number of disputes lent themselves to resolution by alternative modes such as arbitration, mediation and negotiation. They emphasized the desirability of disputants taking advantage of alternative dispute resolution which provided procedural flexibility, saved valuable time and money and avoided the stress of a conventional trial".
In a developing country like India with major economic reforms under way within the framework of the rule of law, strategies for swifter resolution of disputes for lessening the burden on the courts and to provide means for expeditious resolution of disputes, there is no better option but to strive to develop alternative modes of dispute resolution (ADR) by establishing facilities for providing settlement of disputes through arbitration, conciliation, mediation and negotiation
Indian overview of ADR: -
In our country, in the past statutory provisions on arbitration were contained in three different enactments i.e. the Arbitration Act 1940, the Arbitration (Protocol and Convention) Act 1937 and the Foreign Awards (Recognition and Enforcement) Act, 1961. The Arbitration Act, 1940 laid down the framework within which domestic arbitration was conducted in India, while the other two Acts dealt with foreign awards. The Arbitration and Conciliation Act, 1996 has repealed the Arbitration Act, 1940 (10 of 1940) and the Arbitration (Protocol & Convention) Act, 1937 (6 of 1937) and the Foreign Awards (Recognition and Enforcement) Act, 1961 under section 85 of the 1996 Act.
United Nations Commission on International Trade Law (UNCITRAL) prepared a Model Law on international commercial arbitration in 1985. The General Assembly of the United Nations has recommended that all member countries should give due consideration to the Model Law, for the desirability of uniformity of the Law of Arbitral Procedures and the specific needs of International Commercial Arbitration Practice. The United Nations Commission on International Trade Law (UNCITRAL) adopted the UNCITRAL Conciliation Rules in 1980. The Arbitration and Conciliation Bill 1996 was passed by both the Houses of Parliament and received the assent of the President of India on August 16, 1996 and was enforced w.e.f. January 25, 1996 and the enactment came on the statute book as the Arbitration and Conciliation Act, 1996 (26 of 1996).
The use of ADR, is promoted by the enactment of section 89 of the Code of Civil Procedure which is inserted by Section 7 of the Code of Civil Procedure (Amendment) Act 1999. The courts also encourage the parties to use an ADR procedure in appropriate cases. The Governments including Central Government are committed to settle their legal disputes out of the court by ADR methods whenever the other party agrees for it. Normally ADR is an alternative way of settlement of the disputes or issues. ADR is simple, cheaper, quicker and less stressful to all parties, in comparison to adversarial litigation.
The object of arbitration is to obtain the fair resolution of disputes by an impartial tribunal without unnecessary delay and expense. The parties should be free to agree as to how their disputes are to be resolved, subject only to such safe guards as are necessary in the public interest. In the matter governed by the provisions of the 1996 Act, the court should not intervene except as provided by those provisions. The main object of Arbitration is to exclude judicial intervention with the process of Arbitration. There are separate enactments specially to settle disputes arising between employer and employee under the Industrial Disputes Act. Statutory tribunals are also some time lacking in their effort as they do not have the simplicity, transparency and practical approach to resolve the disputes, as in the Arbitration and Conciliation Act, 1996. The English Arbitration Act, 1996, provides that the provisions of law must not be construed as excluding the operations of rule of law consistent with those provisions, in particular any rule of law as to (a) matters which are not capable of settlement by arbitration, (b) the effect of an oral arbitration agreement or (c) the refusal of recognition or enforcement of an arbitral award on ground of public policy. The English Arbitration Act, 1996 must not be construed as reviving any jurisdiction of the court to set aside or remit an award on the ground of errors of fact or law on the face of award.
"The future is not some place we are going to, but one we are creating. The paths are not to be found but made, and the activity of making them changes both the maker and the destination".
Ramakant Gaur
Advocate
Supreme Court of India
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