Author: Ms. Astha Sen, 2nd year, B.B.A, LL.B from Kristu Jayanti College of Law, Bengaluru.
Humans are always surrounded by some problems. Those problems can be related to their family, friends, and partners, at work place or anything. It is not easy to handle humans in the society. When there are conflicts between the individuals or any official authority, you have the remedy to reach court because for every wrong there is a remedy. But not everyone can afford court proceedings. Because it’s quite expensive and also court cannot burden itself with lot of cases. Here, comes an option of finding Alternative of it. ADR “Alternative Dispute Resolution” is an alternative of court proceedings, it is nothing but settling the conflict outside the court with the help of neutral person or third party. The ADR aims to provide less expensive and less time consuming proceedings. The ADR can be turned out effective to solve disputes at domestic as well as international level. But the ADR’s decision is not legally binding on the parties.
The Concept of ADR
The ADR “Alternative Dispute Resolution” Is an alternative to the court procedures. It provides different alternative methods to resolve disputes. There is a legal system in our society. Every person has right to go to courts for redressel.
As Indian judiciary system not completely meet the functions of federal judiciary system it is based on quasi judicial system which means partly giving judicial character to some authorities to hold hearing on and conduct investigations into disputed claims.
And large number of quasi judicial and administrative tribunals have been created for quicker reliefs. All these tribunals and forum are an alternative to all the court procedure an ADR is one of them.
The ADR system in India
The Indian judiciary system is over burden with the cases not just in lower courts but in higher and apex court which is the reason of deals in the decisions. According to the report of The Times of India ' There are more than a lakh cases in district or taluka courts pending for over 30 years. In which Uttar Pradesh and Maharashtra lead in the list with the 41,210 and 23,483 cases.’
To lessen the burden of Judiciary the concept ADR was recognized in the conference held in New Delhi on 4th December 1993 consisting Chief Ministers and the Chief Justices of States under the chairmanship of the then Prime Minister and presided over by the Chief Justice of India.
The legislations made in the development of Alternative Dispute Resolution commonly known as ADR are “Indian Arbitration Act, 1899”, “Arbitration (Protocol and Convention) Act 1937”, “The Arbitration Act of 1940”, “Arbitration and Conciliation Act, 1996”, etc.
The methods of dispute resolution under ADR
The ADR bridges the gap between the parties by bringing them together through a process of Arbitration, Conciliation, Mediation or negotiations.
Arbitration is a process of solving the disputes with the help of third person, who follows all the formality of a judicial adjudication. That third person recognized as an “arbitrator”.
Meaning of “Arbitration” under section 2(1) (a) of Arbitration and Conciliation Act, 1996
‘“Arbitration” means any arbitration whether or not administered by permanent arbitral institution.’
In the well-known case of Collins v Collins, Romilly MR defined Arbitration, “An Arbitration is a reference to the decision of one or more persons, either with or without an umpire, of a particular matter in different between the parties.”
An Arbitrator, valuer and experts, etc.
An arbitrator is a neutral person or a third person, who resolve the dispute of the parties while bringing them together. While on the other hand valuer and experts are different from arbitrator, Valuer would be liable if a party suffers loss on account of his negligent judgment but an arbitrator enjoys the status and immunity of a judge and experts like engineers, accountants and architects are appointed arbitrators in such case these experts acts in a judicial manner.
Arbitration agreement defines the legal relationship between the parties.
According to Section 7(1) ' in this part, “arbitration agreement” means and
Agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not.’
The foremost thing is that the reference should be by means of a written agreement. In section 7(3) ' an Arbitration agreement shall be in writing.’
Conciliation means settling the disputes without the Litigation. Arbitration, arbitrator is the neutral person who resolves the disputes, in Conciliation, conciliator plays the role of neutral person who participates in the discussion of parties.
Difference between arbitration and conciliation:
The main difference between arbitration and conciliation is that, in arbitration proceedings award will be decided by the arbitral tribunal while in the conciliation process decision is that of the parties arrived at with the assistance of the conciliator.
The term “Arbitration” and “Conciliation” have been distinguished in HALSBURY’S LAWS OF ENGLAND as follows:
“The term ‘arbitration’ is used in several senses. It may refer either to a judicial process or to a non-judicial process. A judicial process is concerned with the ascertainment, declaration and enforcement of rights and liabilities as they exist, in accordance with some recognized system of law. An industrial arbitration may well have for its function to ascertain and declare, but not to enforce, what in the arbitrator’s opinion ought to be the respective rights and liabilities of the parties and such a function is non-judicial. Conciliation is a process of persuading parties to reach agreement, and is plainly not Arbitration nor is the chairman of a Conciliation board an Arbitrator.”
Mediation is a Process by which disputing parties engage the assistance of a neutral third person to act as mediator. In mediation, mediator uses various techniques, procedures and skilled to resolve the disputes of parties. He is the third who works as neutral third person for the parties. Even though his decision is not legally binding to the parties. But he has relevant skills to resolve the disputes and takes the mediation process forward.
According to the Federal Court of Australia “Mediation is a structured negotiation process in which an independent person, known as a mediator, assists the parties to identify assess options and negotiate an agreement to resolve their dispute. Mediation is an alternative to a judge imposing a decisive on the parties.
Types of mediation process:
Facilitative mediation: In facilitative mediation or traditional Mediation mediator allows parties to find solutions of their dispute rather than making recommendations or imposing a decision.
Court- mandated mediation: when court mandates the mediation for speedy and cost efficient settlement, then it is recognized as court- mandated mediation.
Evaluation mediation: In evaluation mediation, mediators give recommendations and suggestions and it is kind of opinion based.
Transformative mediation: In transformative mediation, mediators empower the parties to recognize each other’s needs and interests to resolve their conflict.
Med- Arb: Med-Arb means mediation- Arbitration when the disputes remained unresolved in the mediation, then parties can move on to Arbitration.
Arb-Med: In arbitration – mediation (Arb-Med) combines the benefits of both arbitration and mediation.
E – Mediation: In E- Mediation, a mediator provides Mediation service to Parties who are far located. It is completely automated online dispute resolution system.
Lok-Adalat ~ People’s court
Lok-Adalat also known as People’s Court. Lok-Adalat is not a court but it is the forum where settlements of disputes are done. India’s judiciary system is burden with the lot of unsolved cases not only on district but also in High courts and Supreme Court also, more than lakhs cases are pending. To lessen the burden of courts there are some tribunals and forums. For instance, Consumes Forum, When a customer faces any kind of exploitation by the seller, he has right to go to Consumer Forum for redressel, like this Lok-Adalat are organized by the State Legal Aid and Advisory Boards or District Legal Aid Committee. Senior Judicial Officers inaugurate Lok- Adalat before three members of the bar, local officers and general public.
The members of Lok Adalat are known as “Conciliators”. These conciliators are retired officers, social workers and advocates. The students and social workers who participate in the Lok-Adalat get appreciation and participation certificate. The lawyers in the Lok-Adalat work for social service and dedicated towards their job role. Lok-Adalat is held in court premises. And the expenses of is are managed by the State. The State allotted the Authority to Legal Aid Authorities. The Lok-Adalat got good response at District level, so the State Legal Aid board have started organizing Lok-Adalat for pending cases in the High-Courts also. When the case does not settled in the Lok-Adalat then the case goes back to the court from which it came. Then it becomes court’s responsibility to dispose the case as per the law.
Types of cases at Lok Adalat:
Mutation of land cases,
Compoundable criminal offences,
Encroachment on forest lands,
Land acquisition disputes,
Motor accidents claims, and
Cases which are not sub-judice.
Organization of Lok Adalats [S.19]
19. Organization of Lok Adalats.-(1) Every State Authority or District Authority or the Supreme Court Legal Services Committee or every High Court Legal Services committee or, as the may be, Taluk Legal Services Committee may organize Lok Adalats at such intervals and places and for excersing such jurisdiction and for such areas as it thinks fit.
(2)Every Lok Adalat organized for an area shall consist of such member of:
(a) Serving or retired judicial officers; and
(b) Other persons,
Of the area as maybe specified by the State Authority or the District Authority or The Supreme Court Legal Services Committee or The High Court Legal services Committee, or, as the case maybe, the Taluk Legal Services Committee, organizing such Lok Adalat.
(3) The experience and qualifications of other person’s referred to in clause (b) of sub-section (2) for Lok Adalats organized by the Supreme Court Legal Services Committee shall be such as maybe prescribed by the Central Government in consultation with the Chief Justice of India.
(4) The experience and qualifications of other persons referred to in clause (b) of sub-section (2) for Lok Adalats other than referred to in sub-[section (3) shall be such as maybe prescribed by the State Government in consultation with the Chief Justice of High Court.
(5) A Lok Adalat shall have jurisdiction to determine and to arrive at the compromise or settlement between the parties to a dispute in respect of:
(i) Any case pending before; or
(ii) Any matter which is falling within the jurisdiction of, and is not brought before,
Any court for which the Lok Adalat is organized:
Provided that the Lok Adalat shall have no jurisdiction in respect of any case or matter relating to an offences not compoundable under any law.
The whole research based on the concept of ADR (Alternative Dispute Resolution).
The ADR can be Alternative to Court Proceedings. It is cost-efficient and less time consuming. The concept of ADR evolved in 21st century, because it lessees the burden of Court by the dealing with the pending cases.
The ADR is the process settling the disputes outside the Court without going for litigation process. The ADR can be done through the various methods such as arbitration, conciliation, mediation, or negotiations and also through Lok Adalat. The persons who takes all these process forward are arbitrator, conciliator, mediator etc. and ADR showed good result, and now it is encouraging Courts to choose ADR for saving the time of the people and the court. If the ADR process takes on time than it can lessen the amount of pending cases.