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ADR And Human Rights For The Disabled

Alternate Dispute Resolution (ADR) is the term used to describe a variety of procedures used to settle disputes outside of formal traditional courtrooms. ADR techniques include negotiation, conciliation, arbitration, and mediation among others. These techniques are becoming more and more common because they have several advantages, such as quicker conflict resolution, lower expenses, and more control over how disagreements turn out.

However, accessing ADR may present special difficulties for people with disabilities. This article covers a thorough review of the benefits of utilizing ADR for disabled persons, as well as the challenges they face and possible solutions. Every person has the fundamental right to human rights, irrespective of their colour, gender, religion, nationality, or any other status.

Alternative Dispute Resolution (ADR), which includes mediation, arbitration, and negotiation, is a process for settling conflicts outside the normal judicial process. Human rights and alternative dispute resolution are closely related in India. The Indian Constitution guarantees various human rights, including the right to equality, the right to life and personal liberty, and the right to freedom of expression. ADR has the potential to play a significant role in ensuring that these fundamental rights are respected and enforced and can aid in the resolution of conflicts involving human rights violations such as discrimination, harassment, and abuse.

ADR can offer victims a less confrontational and more confidential platform for seeking restitution for human rights violations than traditional litigation. Furthermore, ADR may aid in the settlement of human rights concerns through dispute prevention and conflict resolution. ADR can be used to foster communication and negotiation between various groups in order to avoid disputes that could result in human rights violations.

The use of Alternative Dispute Resolution (ADR) to resolve human rights cases has evolved over time, reflecting changes in society's attitudes towards human rights and in the legal frameworks that protect them. In the early years of ADR, human rights cases were typically not considered suitable for ADR. They were seen as too complex or important to resolve through negotiation or mediation. However, as ADR has become more widely accepted as a legitimate means of resolving disputes, there has been a growing recognition that ADR can play an important role in protecting and enforcing human rights.

The evolution of International Human Rights Legislation has been a fundamental driver of this progress. The United Nations General Assembly adopted the Universal Declaration of Human Rights (UDHR) in 1948, outlining a comprehensive list of fundamental human rights that are universal and inalienable. Following this, a series of international treaties, including the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social, and Cultural Rights (ICESCR).

Established legal obligations on states to protect and promote human rights. As these legal frameworks have evolved, it has become clear that ADR may be a vital instrument for enforcing human rights. ADR can provide a more accessible, less confrontational, and more confidential platform for settling conflicts, which can be especially helpful for marginalized or disadvantaged persons.

Today, ADR is increasingly used to resolve human rights cases, including employment discrimination, harassment and abuse, land disputes, family disputes, and many other types of cases. ADR techniques such as mediation, arbitration, and conciliation are now well established in the field of human rights law and are recognized as important tools for promoting and protecting human rights.

Who Are Disabled?

The term "disabled" generally refers to people who have physical, sensory, intellectual, or mental impairments that affect their ability to participate fully in society. Disabilities can be temporary or permanent, and they can range from mild to severe.

Some common types of disabilities include:

  • Physical disabilities: such as those affecting mobility, dexterity, or stamina, including amputations, paralysis, and arthritis.
  • Sensory disabilities: such as blindness or low vision, deafness, or hard of hearing.
  • Intellectual disabilities: such as Down syndrome or autism, can affect a person's cognitive abilities and intellectual functioning.
  • Mental health disabilities: such as depression, anxiety, bipolar disorder, or schizophrenia.

Disabled Persons in India:
One of the groups in our country that is most neglected is those with disabilities. This is a result of society's blatant apathy, which breeds contempt and hostility towards such individuals. Such individuals are protected by several laws in India as well as international agreements that India abides by.

According to section 2(I) of the Persons with Disabilities Act of 1995, a "disability" is anything that affects one's capacity to move or see, including blindness, low vision, leprosy cured, hearing impairment, locomotor disability, and mental Illness. In India, the last census was conducted in 2011 and it recorded data on the number of disabled people in the country. According to the census, there were 26.8 million people with disabilities in India, which accounted for 2.21% of the total population[1].

Policies In India:[2]
National Policy for Persons with Disabilities, 2006:
The Government of India formulated the National Policy for Persons with Disabilities in Feb 2006 which deals with the physical, educational, and economic rehabilitation of persons with disabilities.

The National Policy aspires to establish an environment that offers people with disabilities equal opportunity, protection of their rights, and full involvement in society since it recognizes them as valuable human resources for the nation.

Some of the aspects which the policy focuses on are:
  1. Prevention of Disabilities
  2. Rehabilitation Measures
  3. Women with disabilities
  4. Children with disabilities

The Convention on The Rights of Persons with Disabilities:
The United Nations Convention on the Rights of Persons with Disabilities is an international human rights agreement designed to uphold the rights and dignity of people with disabilities. Parties to the convention are obligated to advance, safeguard, and ensure that people with disabilities can fully exercise their human rights and are treated equally by the law.

The intrinsic value and dignity of every member of the human family, along with their equality and unalienable rights, are recognised as the cornerstones of freedom, justice, and peace in the world in the United Nations charter. In a similar vein, the United Nations has endorsed the International Covenants on Economic, Social, and Cultural Rights as well as the Universal Declaration of Human Rights. The convention is expected to contribute significantly to addressing the severe social disadvantage that people with disabilities experience and to promoting their equal opportunity participation in the civil, political, economic, social, and cultural spheres in both developed and developing nations.

The Convention on the Rights of Persons with Disabilities addresses issues such as broad principles for promoting and protecting handicapped people's rights, as well as the duties that state parties have pledged to enact measures. The Protocol to the Convention on the Rights of Persons with Disabilities has been added to the Convention on the Rights of Persons with Disabilities, authorizing the Committee on the Rights of Persons with Disabilities to receive and consider communications from or on behalf of individuals or groups of individuals who claim to be victims of a violation of the provisions of the Convention on the Rights of Persons with Disabilities by a State party.

Constitutional rights of disabled persons:
  1. Prohibition of Discrimination:
    The "Right to Equality" under Article 14 is expressed in Article 15, which enshrines a particular aspect of the equality principles pertaining to discrimination by state or on other grounds. In contrast to Article 14, which covers "any person," Article 15 limits the scope of protection to citizens. Thus, in practice, Article 15 safeguards against discriminatory governmental actions, although its scope is smaller than that of Article 14.

    The "prohibition of discrimination" based on religion, race, caste, sex, or place of birth is addressed in Article 15 of the Indian constitution.

    According to Article 15(2), no citizen shall be subjected to any disabilities liability restriction or condition regarding:
    1. Access to shops, public restaurants, hotels, and places of public entertainment; or (b) Accommodation in a hotel or other accommodation; or
    2. The use of wells, tanks, bathing ghats, highways, and public resorts that are fully or partially maintained with state money set aside for public use.
  2. Equity in Social, Economic and Cultural Rights:
    Article 25 of the CRDP recognizes the "right of a person with disabilities to education; state parties shall ensure an inclusive education system at all levels and lifelong learning in order to realize this right without discrimination and on the basis of equal opportunity."

    They considered the constitution to give education to disabled children if it clearly guarantees the right to education, the right to free education, or the right to compulsory education to disabled children or prohibits disability discrimination in education. Only 28% of nations worldwide give some form of constitutional guarantee of educational rights to children with disabilities.
  3. Right to Work:
    According to Article 27 of the CRDP, states must "recognize the right of persons with disabilities to work, on an equal basis with others; this includes the right to earn a living through work freely chosen or accepted in an open, inclusive, and accessible labour market and work environment to persons with disabilities." [3]
  4. Right to Liberty:
    Article 14 of the CRPD requires state parties to provide the right to liberty and security of persons to individuals with disabilities. Persons with disabilities were thought to have the right to liberty if they were specifically accorded the right to freedom or liberty. Only 9% of the world's constitutions specifically grant the right to liberty to people with disabilities. However, 19% of the constitution states that the right to liberty might be withheld by people suffering from mental health conditions.
  5. Right to Freedom of Expression:
    The CRPD states in Article 21 that "all appropriate measures must be taken to ensure that persons with disabilities can exercise their right to freedom of expression and opinion, including the freedom to seek, receive, and impart information and ideas on an equal basis with others and through all forms of communication of their choice." [4]

Benefits of Using ADR for Disabled Persons
Despite the challenges that disabled persons may face when accessing ADR, there are also many benefits to using ADR to resolve disputes. Some of these benefits include:
  1. Greater Control:
    ADR processes allow disabled persons to have greater control over the outcome of their disputes. Unlike traditional court processes, which are governed by strict rules and procedures, ADR processes allow parties to work together to find solutions that meet their specific needs and interests.
  2. Flexibility:
    ADR processes are often more flexible than traditional court processes, which can be particularly beneficial for disabled persons. For example, parties may be able to schedule mediation sessions at times that are convenient for them or use technology to participate remotely.
  3. Reduced Costs:
    ADR processes can be significantly less expensive than traditional court processes. This is particularly important for disabled persons who may have limited financial resources.
  4. Speed:
    ADR processes can be much faster than traditional court processes, allowing parties to resolve disputes more quickly and with less disruption to their lives.
  5. Privacy:
    ADR processes are often confidential, which can be particularly important for disabled persons who may be concerned about their privacy.

Best Practices for Using ADR for Disabled Persons
To ensure that ADR processes are accessible and effective for disabled persons, there are several best practices that should be followed. These include:
  1. Accessibility:
    ADR venues should be physically accessible to disabled persons, including having wheelchair ramps, accessible bathrooms, and other accommodations as needed.
  2. Communication:
    ADR providers should ensure that communication barriers are addressed, including providing interpreters or other communication aids as needed.
  3. Education and Outreach:
    ADR providers should engage in education and outreach efforts to ensure that disabled persons are aware of the ADR options available to them and how to access these.

ADR (Alternative Dispute Resolution) can be used to resolve various types of human rights cases.
Here are some examples of human rights cases that can be resolved through ADR:
  • Employment discrimination:
    Cases of job discrimination, such as discrimination based on gender, ethnicity, religion, or disability, can be resolved via ADR. To encourage communication between the parties and arrive at a resolution that is agreeable to both, mediation or conciliation may be utilized.
  • Harassment and abuse:
    ADR can be used to address cases of harassment and abuse, such as sexual harassment or domestic violence. Mediation or conciliation can be used to facilitate a conversation between the parties and reach an agreement on how to prevent future occurrences.
  • Land disputes:
    Land conflicts can have serious human rights consequences, such as relocation and denial of basic necessities. Arbitration can be used to settle land-rights disputes and guarantee that the interests of all parties concerned are protected.
  • Family disputes:
    All parties concerned, especially women and children, may have substantial effects on their human rights as a result of family disputes. With an emphasis on defending the rights and interests of all parties concerned, family problems like custody fights or inheritance disputes can be resolved through mediation or conciliation.
Overall, alternative dispute resolution (ADR) may be beneficial in settling human rights situations since it provides a less confrontational and more confidential venue for addressing conflicts. It can also be more efficient and cost-effective than traditional litigation, making it more accessible to people who may not have the financial wherewithal to seek traditional legal remedies. Challenges Faced by Disabled Persons in Accessing ADR:
When it comes to accessing ADR, disabled people may confront several problems. Among these difficulties are:
  • Physical Accessibility:
    Many ADR venues may not physically be accessible to individuals with disabilities. For instance, it could be challenging for people with disabilities to engage in mediation if the mediation room lacks wheelchair ramps or accessible facilities.
  • Communication Barriers:
    Disabled persons may have communication difficulties, making comprehending the ADR process and articulating their needs and preferences difficult. A sign language interpreter, for example, may be required for a deaf individual to participate in mediation.
  • Lack of Knowledge:
    Disabled persons may be unaware of the ADR options accessible to them, or they may not know how to utilize them. Because of their lack of knowledge, they may be deterred from utilizing ADR to resolve disputes.
  • Financial Constraints:
    Financial hardships may make it difficult for disabled people to pay for ADR services or to go to ADR sites.
  • Power Imbalances:
    People with disabilities may encounter power imbalances when participating in ADR proceedings. An able-bodied mediator or arbiter, for instance, could intimidate or overwhelm a handicapped person.

ADR may be made more accessible and effective for people with disabilities in a few innovative ways:
  1. Online Dispute Resolution (ODR)
    One innovative way of making ADR more accessible for disabled persons is through Online Dispute Resolution (ODR). ODR involves using technology, such as video conferencing, to conduct ADR processes remotely. This can be particularly beneficial for disabled persons who may face physical barriers to attending in-person ADR sessions.

    ODR can be used for a range of ADR processes, including mediation and arbitration. In mediation, for example, parties can communicate with each other and the mediator through video conferencing, without the need for physical attendance. This can save time and money, as parties do not need to travel to attend mediation sessions. ODR can also be more flexible, as parties can schedule sessions at times that are convenient for them, regardless of their location.

    However, ODR poses considerable difficulties for disabled people. For example, if a disabled person uses assistive technology such as screen readers or captioning, the device must be compatible with the video conferencing platform. ODR service providers must guarantee that their technology is usable and compatible with a variety of assistive technologies.
  2. Disability-Specific ADR Processes
    Disability-specific ADR techniques are another creative way to make ADR more accessible to disabled people. These processes are adapted to disabled people's individual needs and preferences, with the goal of removing barriers that may prevent them from participating in regular ADR processes.

    In the United States, for example, the Americans with Disabilities Act Mediation Programme (ADAMP) is a disability-specific ADR procedure that provides mediation services for disability-related issues. The program includes disability specialists and employs a variety of modifications, such as sign language interpreters, to ensure that all participants can participate.

    Disability-specific ADR proceedings can also be more flexible and provide the parties with more autonomy. For example, parties may be able to select the mediator or arbitrator, or they may be able to establish the process's norms and procedures.
  3. Integrating ADR into Disability Services
    Integrating ADR with disability services is another creative technique to make ADR more accessible for those who are disabled. Disability services, such as case management or advocacy services, currently aid many disabled people. Ensuring that disabled people have access to ADR as a conflict resolution method can be accomplished by integrating ADR into these services.

    For instance, as part of its support services, a disability advocacy organization could offer mediation services. This can make sure that disabled people are informed of and able to use ADR choices as required. Incorporating ADR within disability services can also aid in the development of trust and familiarity with the ADR process. If disabled people are already familiar with the organization offering the services, they are more likely to engage in ADR.
  4. ADR Training for Disability Service Providers
    Giving ADR training to those who offer services to the disabled is another creative technique to improve ADR's accessibility for people with disabilities. Case managers and advocates for people with disabilities may be in a particularly good position to spot problems and recommend parties to ADR procedures.
  5. Mobile ADR
    Instead, then forcing the parties to visit an ADR facility, mobile ADR includes bringing ADR procedures to the parties. For disabled people who might have trouble getting to an ADR venue, this can be especially helpful. Mobile ADR might entail physically moving ADR professionals to the parties involved or employing technology, such as tablets or smartphones, to expedite ADR operations. For instance, a mediator or arbitrator may hold a session at a disabled person's home.
  6. Peer Mediation
    Peer mediation refers to the use of trained individuals with similar impairments to arbitrate disagreements amongst disabled people. This can be especially useful since these mediators have direct knowledge of the difficulties that disabled people confront and can provide a unique viewpoint. Peer mediation can also be more pleasant for disabled people since they may feel more at ease sharing their disagreements with someone who has had comparable experiences.
  7. Disability-Inclusive ADR
    Disability-inclusive Designing ADR procedures with disabled people's unique needs and preferences in mind is a key component of ADR. This may entail making modifications like ramps for wheelchairs, handicapped restrooms, and sign language interpreters available, as well as making sure that communication obstacles are removed. ADR that is disability-inclusive may also entail teaching ADR professionals how to interact successfully with people who are disabled and how to provide adjustments as necessary.
  8. Restorative Justice
    In restorative justice, the parties to a conflict are brought together to discuss the harm that has been done and to collaborate on a resolution. Because it prioritizes the needs and interests of the parties involved rather than legal rights and responsibilities, restorative justice can be particularly beneficial for disabled people. In addition, restorative justice can be more adaptable and innovative than conventional ADR procedures, enabling parties to come up with solutions that suit their own requirements and preferences.

The Importance of ADR in Protecting the Human Rights of Disabled Persons
As previously stated, Alternative Dispute Resolution (ADR) has grown in importance as a means of settling conflicts outside of traditional courtrooms. ADR can be crucial in preserving the human rights of disabled people. The United Nations Convention on the Rights of Persons with Disabilities recognizes disabled people's right to equal access to justice as others, and ADR can assist to enable this.

Here are some of the reasons why ADR is critical for preserving the human rights of disabled people.

Equal Access to Justice
When it comes to obtaining justice, disabled people have special hurdles. They may confront physical hurdles while attending court hearings or legal meetings and communicative barriers when participating in legal processes. ADR can assist to address these hurdles by offering more flexible and accessible dispute resolution options. For example, online ADR allows disabled people to engage in ADR proceedings from the comfort of their own homes, whereas mobile ADR brings ADR providers to their door. In this way, disabled people can have equal access to justice as everyone else.

Protection of Dignity and Autonomy
ADR can aid in preserving the autonomy and dignity of disabled people. Many disabled people find traditional courtrooms to be daunting and distressing because they may feel as though their needs and concerns are not being taken into account. ADR procedures can be more casual and inclusive, giving disabled people a bigger input in how their conflicts is resolved. As a result of being able to take part more actively in the process, this can aid in preserving their autonomy and sense of dignity.

Customized Solutions
The requirements and preferences of disabled people can be met with specialised solutions from ADR. Traditional courtrooms sometimes employ a one-size-fits-all method of conflict resolution, which may not be effective for people who are disabled. Contrarily, ADR procedures can be customised to the unique requirements and preferences of the parties concerned. This may lead to more innovative and successful solutions that are better adapted to the requirements of people who are disabled.

The rights and safeguards of disabled people have been the subject of several legal disputes.

Here are a few noteworthy cases that occurred in the US:
  1. Olmstead v. L.C. (1999):
    The Supreme Court decided in this case that individuals with disabilities have the right to receive assistance in the most integrated environment feasible. This implies that people with disabilities should be able to live, work, and participate in their communities to the greatest extent feasible.
  2. Tennessee v. Lane (2004):
    In this case, the Supreme Court ruled that people with disabilities have the right to access government services, including courthouses, public transportation, and polling places.
  3. Board of Trustees of the University of Alabama v. Garrett (2001)[5]:
    The Supreme Court concluded in this decision that people with disabilities cannot sue states for monetary damages under the Americans with Disabilities Act (ADA). They can, however, continue to sue states for injunctive relief to eliminate impediments to access.
  4. Toyota Motor Manufacturing v. Williams (2002):
    The Supreme Court defined what constitutes a "disability" under the ADA in this decision. According to the Court, a handicap must significantly restrict a primary life activity in order to be legally protected.
Alternative Dispute Resolution (ADR) mechanisms for persons with disabilities vary widely from country to country. In some countries, ADR may be readily available and accessible to persons with disabilities, while in others, there may be significant barriers to accessing ADR processes.

In general, ADR processes that are accessible and inclusive for persons with disabilities are those that are designed with their specific needs in mind. This may include accommodations such as sign language interpretation, Braille or large print materials, accessible venues, and assistive technologies.

There are laws and regulations in existence in several nations that encourage the use of ADR procedures by people with disabilities. For instance, the Americans with Disabilities Act (ADA) in the United States mandates that ADR procedures be accessible to people with disabilities and establishes standards for any necessary adjustments. The Accessible Canada Act establishes criteria for making sure that ADR procedures are created with accessibility in mind and mandates that they be accessible to people with impairments in Canada.

In some countries, there may also be specialized ADR processes or organizations that are specifically designed to meet the needs of persons with disabilities. For example, in Japan, there are several organizations that provide mediation services for persons with disabilities, including the Japan Mediation Association for Persons with Disabilities and the Japan Disability Mediation Centre.

Overall, while there is no one-size-fits-all approach to ADR for persons with disabilities, there is a range of strategies and best practices that can be used to ensure that ADR processes are accessible, inclusive, and effective for all parties involved.

Protection of Human Rights
ADR can also play a critical role in protecting the human rights of disabled persons. ADR processes can provide an opportunity for parties to have a conversation about the harm caused and to work together to find a solution that respects the human rights of all parties involved. This can be particularly important in cases where the human rights of disabled persons have been violated, such as cases involving discrimination or abuse. ADR processes can help to ensure that the human rights of disabled persons are protected and respected.

A progressive piece of legislation, the Rights of Persons with Disabilities Act, 2016 is without a doubt. It represents a paradigm change from a law based on charity to one based on rights. In many instances, the cruel treatment meted out to the disabled person leaves deep psychic scars and causes them great psychological harm. Social and economic fairness are priorities of the Indian Constitution. The provisions with regard to education and work ensure economic justice for disabled persons, while the rights protected by the Act secure social justice for people with disabilities.

While the government and the judiciary have adopted a right based approach with respect to disabled people, the implementation of the Act would require regular monitoring. Even after the Act came into force, several statutory rights have been denied to disabled people, and the judiciary needs to take a proactive approach in ensuring that the provisions of the Act are implemented in their letter and spirit.

The right of disabled persons to access justice on an equal basis with others is a fundamental human right that is majorly recognized by the United Nations Convention on the Rights of Persons with Disabilities. ADR can play a critical role in facilitating this right by providing more flexible and accessible mechanisms for resolving disputes. ADR can also protect the dignity and autonomy of disabled persons, provide customized solutions, and protect the human rights of disabled persons.[6]

Therefore, it is essential that ADR is implemented in a way that is inclusive of disabled persons and that takes into account their unique needs and preferences.


Written By: Seethala Baskar

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