Everyone wants justice delivered quickly and affordably. Early resolution of an issue in the present day not only saves the parties to the dispute considerable time and money but also fosters a favorable environment for contract enforcement and ease of doing business.
Alternative Dispute Resolution: Meaning
The traditional method of resolving disputes, litigation, is a drawn-out procedure that impedes the administration of justice and overburdens the judicial system. Alternative Dispute Resolution (ADR) provides a better and more expedient approach to resolving a conflict in such a situation. These ADR processes are less adversarial and more likely to result in a negotiated settlement. It is a non-adversarial approach to conflict resolution that entails working together to find the best answer for everyone. It can also play a significant role in lessening the load of litigation on the courts while providing a comprehensive and rewarding experience for the parties.
Function: Alternative dispute resolution is intended to resolve conflicts without the involvement of a judge or jury. The process usually remains open whenever attempts between the parties to address any disagreements among themselves have failed and come to a standstill.
Different forms of Alternative Dispute Resolution
The alternative dispute resolution has 4 different forms. They are as follows-
- The Mechanism of “Conciliation” – It is a non-binding process where a conciliator, or unbiased third party, helps the parties to a conflict come to a mutually accepted resolution. The suggestions of the conciliator are open for acceptance or rejection by the parties. However, the settlement agreement put up by the conciliator will only be final and enforceable if both parties approve it.
- The Mechanism of “Mediation” – When an impartial third party i.e. the mediator intervenes to try and mediate a resolution between the parties, mediation takes place. The mediator’s role is to help the conflicting parties communicate more effectively so that, ideally, they may come to a resolution among themselves rather than judge who is right.
- The Mechanism of “Arbitration” – In arbitration, a neutral third party known as an arbitrator hears the arguments from each party, gathers evidence, and then delivers a decision on the outcomes of the dispute, just like a judge does. Arbitration may be enforceable or non-enforceable. The latter implies that the arbitrator’s decision is advisory and only binding if all parties agree to it, whereas the former implies that the decision is definite and enforceable.
- The Mechanism of “Negotiation” – When the parties to a disagreement are in close contact, negotiation takes place. It helps the parties to discuss their points of view, interests, and potential solutions in order to reach a conclusion that is acceptable to both sides. The parties can decide whether to negotiate informally or with the assistance of lawyers or others who represent them.
Alternative Dispute Resolution: Pros
It is promoted as saving consumers both time and money. The cost of filing a civil lawsuit can be high, and if you can find a lawyer to take your case on with a contingency fee, you will often have to give up a minimum of one-third of any settlement benefits.
Alternative Dispute Resolution: Cons
However, it does not always live up to expectations. When a significant and complicated claim is in dispute and there are sharply different interpretations of the facts, this approach can occasionally be just as costly and exhausting as the litigation process it is meant to replace.
Alternative Dispute Resolution: Current Standing in India
The current standing of India has incorporated-
- The Legal Services Authority Act- To promote out-of-court settlements, the Legal Services Authorities Act was enacted in the year 1987. The revised Arbitration and Conciliation Act was passed in 1996.
- Plea Bargaining- It was incorporated in the year 2005 under the Criminal Procedure Code. Plea bargaining is explained as the pre-trial negotiations between the parties during which one party agrees to plead guilty in return for specific concessions by the other party.
- Lok Adalat- It was incorporated as an informal setting that makes it easier to negotiate in front of a judge and dispose of matters without placing an excessive emphasis on legal intricacies. The verdict of the Lok-Adalat is final, binding against each party, and irrefutable in court.
- The Arbitration and Conciliation (Amendment) Bill of 2021- The Bill was incorporated by the Lok Sabha in the year 2021 to prevent “fly-by-night operators” from abusing the law to get favorable awards through fraud. The Standing Committee of the Parliament on Law and Justice most recently recommended major amendments to the Mediation Bill of 2012 in July 2022.
- NITI Aayog- In the recently published research, “The Future of Dispute Resolution”, the NITI Aayog explores the history, importance, and current condition of online dispute resolution (ODR) in India. It is the use of information and communication technology (ICT) to help parties settle disputes.
Conclusion
ADR mechanisms can be more effective and more affordable than litigation, and parties frequently use a variety of ADR techniques to fulfill their objectives. ADR can enable family members who are emotionally invested in the matter to reach amicable solutions in addition to the benefits for the economy. ADR still necessitates that the parties freely review their disputes and cooperate to find a resolution.
Even though the goal of ADR is to avoid the expense, formality, and stress of going to court, many parties nonetheless retain legal counsel to represent them in ADR proceedings. Furthermore, they look for pre-procedure discussions regarding possible strategies or solutions. You should consult a lawyer experienced in your specific legal matter and knowledgeable about the ADR collaborative mechanisms, just as you would with any other legal conflict.
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