This article has been written by Jessica Fernandez from Lloyd Law College. Edited and published by Risha Fatema.

Table of Contents

INTRODUCTION

Alternative Dispute Resolution(ADR), in simple terms, may be defined as a procedure for settling disputes by means other than litigation, such as arbitration and mediation. It is not a right, but it can be opted for. This mechanism also reduces the burden on the
judiciary. It is non-adversarial as it works out to reach the best possible resolution for each party through amicably settling the dispute that has arisen between them. The Indian justice system has been severely strained, owing mostly to the large number of cases pending in courts, this is where the need and necessity of ADR comes into the picture.

ADVANTAGES OF ADR

In ADR, the disputes are settled privately in a closed space. This helps in maintaining the confidentiality of the dispute as well as the details related to the parties. There is also procedural flexibility which saves time as well as money, unlike what is normally seen in
a conventional trial. This often results in both parties feeling free to express their contentions and also improved relationship between them along with greater satisfaction with regards to the award passed. ADR is also a fact-track system of settling disputes and it has a one-year timeline, whereas a matter in the Court may take years and years to settle. Therefore, it is a free and viable alternative to our traditional judicial system.

CLASSIFICATION OF ADR MECHANISMS

The different mechanisms available under ADR can be classified into the following general types:

● Arbitration-

The dispute is referred to an arbitral tribunal, which passes an
award,i.e., the decision on the particular dispute, which is mostly binding on the parties. It is less formal than a trial, and the rules of evidence are usually relaxed. In general, there is no right to appeal an arbitrator’s decision. Additionally, there is very limited room for judicial intervention in the arbitration procedure except for some interim measures.

● Negotiation-

A non-binding procedure in which negotiations between the parties
begin without the intervention of a third party, with the goal of reaching a negotiated settlement to the dispute. It is the most commonly used method of alternative dispute resolution as people always try to settle disagreements themselves. Negotiation takes place in businesses, non-profit organizations, government branches, legal proceedings, between nations, and in personal issues including marriage, divorce, parenting, and daily life.

● Conciliation-

Conciliation is a non-binding method of settlement in which an
impartial third party, known as a conciliator, assists the disputing parties in reaching a mutually satisfying agreed-upon settlement. It can be called more or less an informal form of arbitration. The parties can accept or reject the conciliator’s proposals. However, if both parties approve the settlement instrument drawn up by the conciliator, it becomes final and binding on both.

● Mediation-

In mediation, a neutral person known as a “mediator” assists the
parties in attempting to obtain a mutually agreeable resolution of their disagreement. The mediator does not decide the issue at hand but rather facilitates communication between the parties so that they can attempt to resolve it themselves. Anyone who completes the 40-hour training requirement set by the Supreme Court’s Mediation and Conciliation Project Committee (SC) can become a mediator. To be accredited as a qualified mediator, he must also have completed at least 10 mediations that resulted in a settlement, and at least 20 mediations in total. The parties retain control of the outcome following mediation.

THE POSITION IN INDIA

Initially, the law of arbitration was governed by three acts, which became obsolete over time. As a result, trade and industry associations, as well as arbitration specialists, demanded and proposed revisions to make the Act more responsive and in line with
societal demands and the rapid progression that India has experienced. It was felt that the country’s economic reforms could only be addressed if local and international business conflicts and their resolution were not excluded from the scope of such changes. The United Nations in 1985 adopted the Model Law on International Arbitration and Conciliation and asked all the countries to give due importance to it. This resulted in the enforcement of the said Act.
Other similar things were encouraged that did not require litigation. The 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.”
The Lok Adalat is another form of adjudicating system that was used in ancient India. The term ‘Lok Adalat’ is an acronym for “People’s Court.” Gandhian ideals serve as the foundation of this system. It is also a part of the ADR system in India. It consists of an informal setting that allows negotiations in the presence of a judicial officer, and cases are resolved without undue emphasis on legal details. The Lok-Adalat’s order is final and binding on the parties and cannot be appealed in a court of law.
In 2021, the Lok Sabha passed the Arbitration and Conciliation (Amendment) Bill, 2021 to check misuse by “fly-by-night operators” who take advantage of the law to get favourable awards by fraud. The Bill intends to replace the Arbitration and Conciliation (Amendment) ordinance issued in November 2020.
The NITI Aayog has also released a report with the title- The Future of Dispute Resolution, covering the concept of Online Dispute Resolution (ODR), including its evolution, significance, and current situation in India.

CONCLUSION

ADR has proven successful in clearing the backlog of cases at various levels of the judiciary. Lok Adalats alone have disposed of more than 50 lakh cases every year on average in the last three years. However, there seems to be a lack of awareness about the availability of these mechanisms. Opting for ADR is a good alternative as it saves a lot of time that can potentially be taken up in litigation proceedings. India has witnessed a gradual change in the mechanisms of Alternative Dispute Resolution as more and more
people are choosing ADR for the settlement of their disputes.