Alternate Dispute Resolution And The Common Man
“Discourage litigation; persuade your neighbours to compromise whatever you can. Point out to them how the normal winner is often a loser in fees, expenses, cost and time” - Abraham Lincoln
Speedy disposal of cases is an important issue for all concerned with the proper administration of justice. Alternate Dispute Resolution is a less adversarial alternative to traditional litigation system. These methods can be employed in all those cases that can be litigated, such as disputes relating to insurance, trade, technology, divorce and other family matters etc. Alternate Dispute Resolution is not open to public, all hearings and awards are private and confidential. Common man gets trapped in year long litigation processes, which erodes the very purpose of delivery of justice. Common man with development in the sphere of Alternate Dispute Resolution will be provided with an opportunity to showcase their dispute, as well as reach resolution amicably, in a suitable and congenial atmosphere, without falling deep into the complexities of litigation.
Alternate Dispute Resolution system is not a new phenomenon for the people of this country; it has been prevalent in India since time immemorial. Ancient system of dispute resolution made a significant contribution, in reaching resolution of disputes relating to family, social groups and also minor disputes relating to trade and property. Village Level Institutions played the leading role, where disputes were resolved by elders, comprising Council of Village (popularly called Panchayats), which was an informal way of mediation. In earlier days disputes hardly reached courts. Decisions given by the elderly council were respected by all. But subsequently boon accompanied bane, the very system lost its aura due to intervention of political and communal elements. Before coming of the Legal Services Authority Act, 1985, Lok Nyayalayas did not have statutory recognition and also presently, the Gram Nayayalayas Bill, 2007, establishes Gram Nayayalayas, as the lowest tier of the judiciary for rural areas.
The concept was also prevalent in other parts of the world in various forms and manners, like in case of Philippines the leader of the local area tried to resolve minor issues which erupted amongst the parties. Similarly in case of Latin America, an officer of the State juece de paz could use informal procedures to mediate or Conciliate between parties . Alternate Dispute Resolution was also existent in UK, when matters in nearly 1947 were decided by such processes of arbitration, conciliation etc. In China and Japan mediation was the foremost step taken for the resolution purposes.
In US, the idea of Alternate Dispute Resolution, have been introduced only few decades prior to this country but it has been found that 94% cases are referred to be solved by Alternate Dispute Resolution process, wherein 46% of such cases are decided without contest. The Law Commission headed by Sh. M.C. Setalvad gave the Fourteenth Report which deals comprehensively with all the areas where reformation is required and it states that litigation tailored with its rich bags frustrates the common man thereby denying him access to justice . The Indian Constitution provides for the settlement of International disputes by Arbitration in Article 51(d) as a Directive Principle of State Policy.
Alternate Dispute Resolution is also popular by the name of Additional Dispute Resolution and Appropriate Dispute Resolution. In the case of Hussainara Khatoon v. Home Secretary, State of Bihar Supreme Court has held that “right to speedy trial is a fundamental right implicit in the guarantee of life and personal liberty enshrined in Article 21 of Indian Constitution” . The principle of ubi jus ibi remedium also conveys the same message that whenever a wrong is done to a person, he has the right to approach the court. Assistance from the court must not be denied, on financial basis.
The five general subtypes of Alternate Dispute Resolution are :
NEGOTIATION: In this process no intervention from the third party takes place, to bring about amicable settlement whereas advice of a skilled person or a social worker as a third party may be respected on certain issues. The participation from both the parties is voluntary in nature.
MEDIATION: In this case a third party, known as a mediator tries to facilitate the resolution process but he cannot impose the resolution, parties are to decide according to their convenience and terms.
COLLABORATIVE LAW: The attorneys try to facilitate process of resolution in accordance with the terms of the contract mentioned specifically. The agreements are prepared with the help attorneys. The resolution reached cannot be imposed on the parties by the attorneys.
ARBITRATION: In case of arbitration the third party adjudge and bring about peaceful settlement can very well impose the resolution on the parties. Arbitration generally grows when the parties through the contract agrees to resort to arbitration process, in case of disputes that may arise in future regarding contract terms and conditions.
CONCILLIATION: In this case, parties submit to the advice of a conciliator, who talks to the parties separately and try resolving their disputes.
There are some more forms of Alternate Dispute Resolution like Evaluation , Early Neutral Evaluation , Neutral Fact Finding , Ombudsman etc practiced in other part of the world. Alternate Dispute Resolution can be conducted online too; such process is called online dispute resolution. These services can be provided by the government, but such methods cannot assure efficiency.
There are two different ways to adopt the process of Alternate Dispute Resolution :
# Alternate Dispute Resolution with filing of a lawsuit: In this case by way of mediation, conciliation etc either the judge or some court officer will make an attempt to resolve the disputes between the parties and reach an amicable settlement. If the positive happens case is dismissed thereby saving the time of the court and expenses of the parties. The very practice has been followed via system of Lok Adalats in India.
# Alternate Dispute Resolution by way of free standing: This is generally the case of commercial arbitration, where the parties to the dispute agree, not only to have a third party as their arbitrator, but also agrees to what rules shall be binding and whether the decision of the third party will be either binding or advisory in nature.
Alternate Dispute Resolution picked up pace in the country, with the coming of the East India Company, Bengal Resolution Act, 1772 and Bengal Regulation Act, 1781 provided parties to submit the dispute to the arbitrator, appointed after mutual agreement and whose verdict shall be binding on both the parties . The Regulating Act, 1781 mentioned that judges should recommend parties to Alternate Dispute Resolution methods, no award of arbitrator could be set aside unless there are two witnesses to the fact that arbitrator had committed an error . In case of Guru Nanak Foundation v. Rattan & Sons Court observed that, “Interminable, time consuming, complex and expensive court procedures impelled jurists to search for an alternative forum, less formal, more effective and speedy for resolution of disputes avoiding procedure claptrap”.
Alternate Dispute Resolution in India gained importance under Arbitration Act, 1940, while sometime later Arbitration and Conciliation Act, 1996 was passed in consonance with UNCITRAL Model Law of Arbitration, which brought the nation, on an international platform. The need arose as there was no provision in the Indian Arbitration Act, 1940 to resolve a dispute between an Indian and a non Indian; it caused difficulties to refer such matter for arbitration For the sake of convenience and uniformity, most of the countries have based their legislation on UNCITRAL Model Law, as this law gives the binding force to arbitral award and lays down various rights and duties for commercial parties handling disputes . Some important International Conventions on Arbitration are: The Geneva Protocol on Arbitration Clauses, 1923 , the Geneva Convention on the Execution of Foreign Award, 1927 , the New York Convention of 1958 on the recognition and Enforcement of Foreign Arbitral Award.
The concept of Conciliation was introduced in the statute of Industrial Disputes Act, 1947. The Conciliation is generally conducted by an officer appointed by Government under Industrial Disputes Act, 1947. Industrial Disputes Act, 1947 provides provisions for the parties to settle disputes through Negotiation, Mediation and Conciliation, for example Section 12 , Section 18 , etc. Alternate Dispute Resolution plays a major role in the family disputes settlement. Section 5 of the Family Court Act, 1984 provides provisions for the association of social welfare organizations to hold Family Courts under control of government. Section 6 of the Act provide for appointment of permanent counselors to enforce settlement decisions in the family matters. Further Section 9 of the Act imposes an obligation on the court to make effort for the settlement before taking evidence in the case . In addition to all provisions referred above, Indian Contract Act, 1872 most importantly gives a mention about Arbitration Agreement as an exception to Section 28 that renders an agreement void if it restrains a legal proceeding. Alternate Dispute Resolution whether sorted for or not can be easily inferred from presence or absence of the ‘Arbitration clause'.
Alternate Dispute Resolution procedures are mostly divided into two segments: Adjudicatory and Non Adjudicatory. In case of adjudicatory process case reaches a stage where decision gets a binding effect, for example in case of arbitration. And the other is non-adjudicatory; it contributes to resolution without adjudication, such as process of Negotiation, Mediation etc
Section 89 was introduced to Civil Procedure Code which formulates four methods to settle disputes outside the court namely, Arbitration, Conciliation, Mediation and Lok Adalats. In case of Advocate Bar Association v. UOI Supreme Court directed the setting up of committee that would look into the implementation of various provisions, including Section 89 . Section 89(1) of Civil Procedure Code provides for settlement of disputes outside court. There are certain lacunas in this sections that goes unnoticed, firstly whether reference by court to Alternate Dispute Resolution is discretionary or mandatory, secondly, few details in relation to opinion of expert mediators, conciliators incentives, compensation and much more are less comprehensive and explanatory . Alternate Dispute Resolution received recognition after enactment of Civil Procedure Code, 1859 it provides various related sections as, Section 312-325 lays down the procedure of Arbitration and Section 326-327 provides for Arbitration without courts intervention . It can be mentioned that various methods and processes have been incorporated in Indian legal system to achieve speedy disposal of cases, the concept of Alternative Dispute Resolution is a western approach where as Lok Adalat one of its specie is purely a national concept.
Alternate Dispute Resolution is more of corporate friendly, commercial parties enter into contract with Arbitration Clause. Most of the companies resort to Alternate Dispute Resolution, as it is less complicated, least expensive and most importantly confidential. Litigation takes year’s long time with bundled up procedures which affects the working processes of the companies, causing uncertainties in financial sphere of their commercial sectors. Due to development of trade at an International level it has become difficult for the corporate sector to maintain pace with traditional ways of litigation. Companies are desperate to get the dispute resolved outside court, as it is beneficial to them in all ways.
Resolution can be of great advantage to common man yet the idea doesn't acclimatize in all the developing countries of the world, as it contradicts with the domestic laws of that country, special care must be taken that the resolution reached, must depend upon honesty, trust, so as not to loosen ties of subsisting relationship and moreover, courts lack command to submit disputes to Alternate Dispute Resolution Methods . Various steps have been taken to make the process of Alternate
Dispute Resolution a success:
# Many institutions have been established for the purpose of Alternate Dispute Resolution implementation. Some of these institutions are IIAM , ICA and ICADR
# Various measures can be taken to make this technique more efficient and easily approachable such as, Mediation and Conciliation centers can be opened exclusively for dispute resolution purposes, as has been already implemented by many State high courts. These centers can work effectively on weekends or an hour after normal working court hours.
# To increase awareness seminars, workshops can be held and Alternate dispute Resolution can be made a compulsory subject for all law courses. Awareness camps will help to change the mindset of the people; thereby making it clear to them that litigation is a second priority for resolution purpose the very purpose can be reached.
# Arbitrators, Mediators, Conciliators and all those forming a part of this process must be provided with expert training to deal efficiently with any kind of problem.
Therefore, Alternate Dispute Resolution is a need, both at the national and international front. Quality of justice suffers when there is a disproportionate delay in deciding piles of cases. When easier way has been resorted and found, then holding on to traditional concepts is not a wiser show. This technique is useful in dispensing Justice effectively, which is the basic pillar of every judicial system. Alternate Dispute Resolution is an appreciable step if taken, with serious concern and proper management. A common man can enjoy number of its advantages, from speedy justice, less expenses, deserved justice to secured confidentiality and final satisfaction. Mahatma Gandhi in his autobiography expresses, “....both were happy with the results, and both rose in public estimation ...I realized the true function of a lawyer was to unite parties driven as under. The lesson was so indelibly burnt into me that a large part of my time during twenty years of my practice as a lawyer occupied in bringing out private compromises of hundreds of cases. I lost nothing thereby- not even money: certainly not my soul”
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