Authored by - Mr. Piyush Dev
Designation - Student
ADR is a process of dispute resolution which is working together co-operatively to reach the best resolution for everyone. An process which helps in reducing the burden of litigation on courts, while providing a well-rounded and satisfying experience for the parties involved. The dispute between the parties are addressed by dealing with their interests.
It provides the opportunity through
1. Creativeness
2. collaboratively bargaining, and
3. fulfill the interests by driving their demands
Is it legal?
The Alternative dispute redressal is enshrined in the Indian Constitution’s preamble,
: “to secure to all The citizens of India, justice-social, economic and political-liberty, Equality and fraternity
the Arbitration and Conciliation Act of 1996 to makes arbitration less technical, more useful and more effective, clearing serious defects of the earlier arbitration law, and on the same hand it incorporates modern concepts of arbitration.
Why we need ADR?
In India there are 59,867 cases pending in the Supreme Court
44.75 lakh cases in high courts
At the district and other lower court, the number of pending cases stand at a 3.14 crore. On the same side it’s just present stats
Even today there is 26% of cases, more than 8.5 million, are more than 5 years old with Estimated that 12 million Indians await trial in criminal cases in the country. On The dispute resolution puts a huge impact on the Indian economy and worldwide Perception on “doing business” scenario in India. The Supreme Court made it clear that there are some stage of affair which must Be addressed: It is our Constitutional obligation to Ensure that the backlog of cases is declared and efforts are made to Increase the disposal of cases.
ADR and legal aspects
1.The Legal Services Authorities Act was passed in 1987 to encourage settlements without in court legal proceedings , and the new Arbitration and Conciliation Act was enacted in 1996.
2. Section 89, read with Order X Rules 1A, 1B, 1C of the CPC and other laws, affords the judiciary the opportunity to offer the parties to resolve their issues in a timely and secure manner and, in the process, reduce its backlog and huge amounts.
3. Procedure for plea-bargaining was included in the Code of Criminal Procedure in 2005. {Plea-bargaining is best described as a “pre-trial negotiation between the accused and the prosecution during which the accused agrees to plead guilty in exchange for certain concessions by the prosecution.”}
4. The Geneva Protocol on Arbitration Clauses 1923 and the Geneva Convention on the Execution of Foreign Arbitral Awards 1927 were implemented in India by the Arbitration (Protocol and Convention) Act, 1937. This provides easy and amicable efforts to give effects to the Protocol and helping the Convention to become operative in India.
5.Lok Adalat or village courts or people’s village comprises an informal setting which channels negotiations in the presence of a judicial officer out it the courts wherein cases are dispensed without unnecessary emphasis on legal technicalities and other aspects . But this doesn’t means that the order is illegal or of no values. The order of the Lok-Adalat is final and is similarly binding on the parties like the other orders, and is not appealable in a court of law.
What are the few widely used ADR procedures?
1. Negotiation: A non-binding procedure in which discussions between the parties are held without the intervention of any third party, with the object of a negotiated settlement of the dispute.
Essentials of Negotiation are:
1. It is a communication and confidential process;
2. It helps in providing resolves of various conflicts;
3. It is a only complete voluntary exercise;
4. It is a non-binding process as the main aspect is to ;
5. Parties must retain control over results and procedure;
6. There is a possibility of getting wide solutions, and of maximizing dual side gains.
2. Conciliation: In this parties have submit to the advice of a conciliator, who talks to every one of them separately and tries to clear out their disputes. Conciliation is also a non-binding procedure in which the conciliator helps the parties to a dispute to come up at a mutually, convenient and satisfactory with an agreed settlement of the dispute.
3. Mediation: A non-binding procedure in which there is an impartial third party popularly known as a mediator, who tries to channel up the resolution process but he is not allowed to superimpose the resolution.
STAGES
1. INTRODUCTORY MEETING
2. STATEMENT OF PROBLEM
3. INFORMATION GATHERING
4. IDENTIFICATION OF THE PROBLEM
5. BARGAINING
4. Arbitration: It is a process of resolution of disputes without legal processing in the court, wherein the parties refer the dispute to one or more persons appointed as an arbitrator(s) who go through the case and after proper understanding Imposes a decision that is binding on both parties. Usually, the arbitration clauses are mostly mentioned in commercial agreements by the companies, wherein the parties agree to come up to an arbitration process in case of any disputes that may arise in related to the contract terms and conditions.
Types of arbitration are:
1. Ad Hoc Arbitration
2. Institutional Arbitration
3. Statutory Arbitration
4. Fast track arbitration
Advantages and significance
1. Reduce workload on the courts given that today about 3.3 crore cases are pending in Indian courts (National Judicial Data Grid data).
2. Provide a Speedy and secure disposal of cases by avoiding procedural delays associated and thus fulfil fundamental right of speedy trial part of Article 21.
3. cost and time of litigation comes down thus duty of providing free legal aid to poor is met (39A).
4. Saves common man from complex legal procedures
5. ADR maintain a high level of confidentiality. Help especially in civil matters like divorce, medical
6. To promote governance..
7. It is more viable, economic, and efficient
8. Help in providing creative solutions, sustainable outcomes, greater satisfaction, and improved relationships.
Conclusion
Easy on pocket , fast redressal and happy both sides, what more any one can expect from legal sector. ADR is a mechanism that can allow simple and affordable flow of legal services and clearance of a lot of disputes through simple bargaining and negotiation.
Any way you choose it will end up helping you in so many ways. As it is well expressed An ounce of mediation is worth a pound of arbitration and a ton of litigation!”
— Joseph Grynbaum
“I realized that the true function of a lawyer was to Unite parties… The lesson was so indelibly burnt into me That a large part of my time during the twenty years of My practice as a lawyer was occupied in bringing about Private compromise of hundreds of cases. I lost nothing Thereby not even money; certainly not my soul”.
--- Mahatma Gandhi
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