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ADR Helps In Better Access to Justice

ADR Helps In Better Access to Justice

The access to Justice is one of the essential rights of every citizen. But to what extent this is really being accessible.

This is not that courts are not providing justice, they are doing, infact trying to improve day by day but still the burden of cases are also increasing day by day. But the delay in justice is the huge issue as that may be considered as denial of justice in some cases.

The cases filed cannot be reduced as access to justice cannot be denied to anyone as all have an equal right to justice. But however there can be alternatives ways introduced which could share this burden.

One such alternative is this ADR concept. It means methods of dispute resolution other than traditional court system. ADR involves many methods of resolving disputes under it like Arbitration, mediation, conciliation, negotiation, lok-adalats, etc and which ensures speedy justice.

The traditional court system takes long time to dispose of the cases as it considers pleadings, evidences, there is a standard step to step procedure to be followed and lawyers who represents the parties also makes the case disposal take a long time. There are lot of technicalities involved in it. Here everything is under control of judiciary and not parties.
But in case of Alternative Dispute Resolution the parties always has control over the process as it is them who decides who should be an arbitrator, no. of arbitrators, their required qualification, and the governing law, etc. There is party autonomy in ADR.

This ADR system which has been introduced as an alternative to Court system is introduced in order to solve the lacuna or problems arising out of the traditional court system. ADR ensures speedy access to justice and also doesn't compromise with the quality of justice[i].

In ADR part autonomy plays an important role but in case normal court system, the parties do not exercise control.

Types of ADR

In case of Arbitration, the arbitrator who is a third party is appointed by parties with mutal consensus and agreement with each other. So there are more chances that parties are satisfied with the arbitral award passed by arbitrator who has been selected and appointed by themselves. The arbitrator listens to both the sides and looks into the evidence and then passes an arbitral award. Not only that even if later the parties are unsatisfied with the award or feels that arbitrator was impartial etc, then they can go to court.

Today ADR is being used widely across India and even the courts are referring some cases brought before it to go through ADR first and if unsatisfied they may come back to court again.

This is done because it helps courts to decrease their burden of cases, and ensure timely and speedy access to justice, as if it delayed the justice even if done later may not be valuable to the party.

ADR is also less expensive and along with that the costs of lawyers or legal representatives can also be reduced as they may also represent their case on their own in ADR.

The mediation, where the 3rd party mediator is appointed who doesn't compel the parties to arrive at a solution but assist them or facilitate them to arrive at a solution acceptable to both of them. If they failed to arrive at a solution then there will be no compulsion from mediator and in fact parties may go to court. There is no specific legislation governing mediation but there are governed by guidelines and rules of High court And Conciliaton, where a third party conciliator is appointed who basically plays an active role in making the parties arrive at a solution. Conciliator is unlike mediator. The law governing is Arbitration and Conciliation Act, 1996.

Negotiation, it is done between the parties to dispute in which the parties talk directly and arrive at a settlement[ii].

Lok Adalat:
These are also called as people's courts and these are voluntary agencies. Unlike the traditional courts, the lokadalats use new methods like conciliation, negotiation. The law in this respect is Legally Services Authorities Act, 1987.

Party Autonomy and party satisfaction

So all this ensure the party autonomy and also gives an option to parties to select who could assist them in arriving at a solution that keeps both the parties in a win-win situation, rather then favouring only one. This ensures that both are satisfied from the process.

Arbitrator and the governing law of arbitration and seat of arbitration could be selected by parties in such a way that the minimum judicial intervention is possible and ensure that there is no impartiality.

Generally the prolonged proceeding in courts and presentation of documents in court being a open court system removes confidentality and also may badly effect the mutual relationship between parties and may create such a situation that parties would never again enter into agreement or have professional or personal relationship between them.

But in case of ADR the parties relationship could be maintained as the settlement arrived at would keep all parties in a win-win situation. And it is the responsibility of 3rd party appointed to ensure that no parties are disappointed by choosing any type of ADR process.

Also confidentiality is of paramount importance in any relationship which is ensured by ADR process as whatever decided by parties during the process of arbitration, mediation, conciliation, etc could not be disclosed anywhere and could not be used elsewhere except in that mediation process itself.

Both the judiciary as well as legislature has taken steps towards promoting ADR in country.

The court-referred medications where courts have been referring the cases to mediators is one of the most effective step.

The ICA (Indian Council of Arbitration) which basically helps in promoting the dispute settlement by arbitration in an amicable as well as quick way, of disputes relating to industrial and trade. ICADR (International centre for Alternative Dispute Resolution) which is an autonomous organisation and basically helps in promoting in India the facilities and Techniques of ADR.

There has also been some amendments taken place in Legal Services Authorities Act, 1987 in order to ensure that it is in par with the demand and social changes as a result to promote methods of ADR.

The ADR methods like conciliation, mediation, banking ombudsman, lok adalats, mini trials, consumer forums, negotiation have been accepted already as methods for effective dispute resolution.

But again the the mediation as well as pre trial settlement and conciliation has been introduced by sec 89 of code of Civil procedure as effective methods[iii].

The courts now are also referring cases for ADR, and if settlement has not been possible then the parties can go to court again. This is done in order to ensure amicable settlement between parties as well as the most important reason is reducing the burden of cases on courts and to avoid delay in justice.

ADR is the need

The courts being costly and time taking, many people couldn't afford going to courts which is unfair to them. But justice is not something that belong to a class of people, it has to be accessible to all irrespective of any economic status, etc, without any discrimination. So in order to ensure justice to all sections of the people, ADR is the best solution.

ADR also encourages foreigners to invest in India as well as encourages Indians to work with foreigners, etc as in case of dispute they could go for International Commercial Arbitration, etc.

As a result, it ensures that justice is accessible to all and also encourages people to stand by and claim for their right. And maintains relations and increases chances that same parties enter into agreement again and work together and gives assurance to parties that their information is confidential. This is what actually justice means, quick, easy justice, less costly. This keeps parties in a win-win win situation and encourage parties to talk to each other and resolve their issues.

Conclusion and Suggestions:
  • The ADR has to be encouraged by making people aware of its need.
  • More Arbitration institutions has to be promoted
  • There can be training programmes on ADR mechanisms.
  • There is already court-referred medications where courts have been referring the cases to mediators[iv]
  • Court Annexed mediation shall also be promoted with adequate infrastructure.
  • The trial in a reasonable time is a constitutional obligation on part of judiciary which is not being effectively done by present infrastructure of courts, and increased burden of cases. The ADR is a supplement to these. It is a user friendly, quick and ensures quality justice in time and in a cost-effective manner.
End-Notes:
  1. K, Akshaya. ADR and Access to Justice. ADR and Access to Justice | VIA Mediation Centre, https://viamediationcentre.org/readnews/MTQz/ADR-and-access-to-Justice.
  2. Jain, Arpit. Role of ADR in Access to Justice. Law Journals, International Journal of Law, 2 Sept. 2020, http://www.lawjournals.org/download/768/6-4-78-540.pdf.
  3. Vaish, Vinay. Alternate Dispute Resolution (ADR) in India - Litigation, Mediation & Arbitration - India. Mondaq, Vaish Associates Advocates, 11 Dec. 2017, https://www.mondaq.com/india/court-procedure/654324/alternate-dispute-resolution-adr-in-india.
  4. S. B Sinha. ADR and Access to Justice: Issues and Perspectives. http://www.tnsja.tn.gov.in/article/ADR-%20SBSinha.pdf.

Award Winning Article Is Written By: Ms.Penmetsa Srihind
My Linkedin Link: https://www.linkedin.com/in/srihind-penmetsa-37b9361b7
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