Conflicts form an inalienable form of life, they are intrinsic forms of the human existence and need to be addressed as swiftly as they are generated in order for the society to remain at peace, thus having a robust conflict managing and resolution mechanism and instruments is a must for every society and state. The traditional conflict resolution bodies set the stage for the general courtroom system that we see in the form of district, high and supreme courts. This system is increasingly being realised as too time-consuming with a high pendency rate of cases and lousy justice delivery.
Being familiar with the dreary progression of cases in the court systems, the never-ending wait of the final judgment and the labyrinth of paperwork and legal formalities , the system and the variables associated with it seeked out to find a viable solution to it. Alternative dispute resolution mechanism which provided the general populace with the much needed respite from the traditional dispute resolution processes.
There are different categories of alternate dispute resolution practices and mechanisms. The following elaborate on the same:
It is imperative to proceed with making distinction between the non binding and binding opinions /resolutions of the different methods explored in the alternative dispute resolution mechanism,
- The binding opinion/ resolution as the name suggests binds the disputants to the decision of the third party i.e. the conciliator, arbitrator or mediator.
- The non-binding opinion/ resolution involves the disputants agreeing to allow the third party to offer an opinion but that opinion wouldn’t bind the parties to the same.
The parties agree to yield their respective position through agreement or hearing to a neutral third party for resolution. Here the parties provide testimony and evidence similar to a trial.
Here the concerned parties seek to settle the dispute with the assistance of a mediator amongst them. The agreement on the concerned dispute is reached on by an impartial third party (professional) and is in the interest of all the involved disputants.
The parties get together to resolve the dispute amongst themselves and to a solution or resolution. Conciliation differs from mediation in the sense of the main goal is to conciliate, most of the time by seeking modifications and alterations to the parties’ positions without the assistance of any third party involvement.
4. Lok adalat
Here the cases pending in the court of law or at the pre-litigation stage are settled affably and take place usually in the premises of the court.
Negotiation can be termed as a process via which disputing parties resolve disputes, concur upon courses of action, negotiate for individual or collective advantage, and/or attempt to craft outcomes which serve their mutual interests.
1. Need of ADR
The ADR methods were introduced in the Indian legal scenario to achieve the goal of ‘complete justice’ for all citizens of the country. The current population of 135 crore proves to be a great challenge for the judiciary to encompass and render justice efficiently. The sparsely hidden high pendency rates in the courts and the need of catering to and delivering effective and timely judgements despite the gorged court rooms with appeals, a need to streamline and accommodate these cases and their resolution was felt.
ADR provided a creative system which provided an inclusive system of dispute and conflict resolution wherein the different organs of the country;the state, society and the disputing parties came together to solve the concerned dispute.
Several statutory and infrastructural provisions have been made in the country to make room for the ADR mechanism and its institutions. One major step in the growth of ADR services in India is the establishment of institutions such as:
- IIAM – Indian Institute of Arbitration and Mediation
- ICA – Indian Council for Arbitration
- Lok Adalats
- ICADR – International Centre for Alternate Dispute Resolution.
In terms of the statutory backing, The Legal Service Authorities Act, 1987, Arbitration and Conciliation Act 1996 helped in making the ADR processes such as arbitration and Lok Adalats recognised alternatives to the traditional court system. Acts such as the Industrial Dispute Act, 1947, Civil Procedure Code, 1859 (Section 312, Section 312 – 325, Section 326 – 327) helped in the transition and recognition of the ADR methods as well.
In case of the Arbitration and Conciliation Act, 1996 basic conduct in arbitration proceedings, appointment and substitution of arbitrator, composition of an Arbitral Tribunal, hearing and written proceedings, default of the party to claim, Recourse against Arbitral Award. The support for the alternatives of dispute resolution can be witnessed in terms of provisions like section 8 of the Arbitration and Conciliation Act, 1996 wherein, in cases where a judicial application has been filed for a dispute between parties who have agreed to arbitrate, the judicial authority can refer the case to arbitration if it feels that arbitration can take place despite the issue being pending before the judicial authority.
Lok Adalat (Peoples’ Court) concept and philosophy provides another innovative Indian input in settlement of dispute through conciliation and compromise to the world jurisprudence. Sufficient provisions have been created and amended in the area of Lok Adalats in order to aid the rural and general populace in making the most use of this unique Alternative Dispute Resolution mechanism in the country.
Despite the statutory and infrastructural backing the problem of high pendency and over burdening of the judiciary still persists. It has been observed that the legal practitioners and the general populace have a hard time adopting these measures and a lack of awareness and enthusiasm with respect to opting for and following the agreement decided by the arbitrator has been observed.
While every dispute differs in one way or another, they each have one common aim: to be resolved in the most effective and appropriate way possible. In pursuance of this ideal the international bodies have adopted mechanisms and made provision for the adoption of these alternative mechanisms for dispute resolution.
To aid the same the following have been instituted:
A) ICC – International Court of Arbitration of the International Chamber of Commerce.
B) Arbitration and mediation centre of World Intellectual Property Organization.
C) AAA – International centre for dispute resolution of the American Arbitration Association and others have explored new avenues in the ADR field.
The implementation of ADR in the international sphere possesses relevant doubts in the minds of the parties involved in the international ADR. With the first one being the unequal positions in the context of the settlement of their disputes. In light of the differences in the development levels, economic foothold at global position in the international forums, a discrepancy in the ADR can be realised. Former Indian President Mr K.P. Narayanan captured this concern in ICCA International Arbitration Conference, held in New Delhi in March 2000 in the context of international arbitration “a balance has to be reached, a fair balance, so that justice is reached with cooperation; justice rather than a legal pronouncement on so-called ‘merits’”
In addition to the same, with countries following and violating treaties and even the judgements of the ICC as and when it pleases them, parties are in search of formal proof of agreements. A mediation or arbitration agreement does not inspire confidence amongst the disputing parties. In addition to the same the non-binding nature of the agreements lack in deterring the parties to perform actions in contravention to the agreement. This leaves the party cheated with little or no alternative to solve the matter at hand as the alternatives are the following:
- Not doing anything
- Withdrawal from the agreement
- Formal action
The above alternatives do not yield to the solution and instead give rise to a never ending trail of confrontation, agreements and no resultant resolution of the matter.
3. Light at the other end
If the international community strengthens itself with equal standing given to all countries in it’s true sense then the global fraternity can pave way for ADR to be practiced .Mediation is nonbinding but often achieves satisfactory results as it gives the opportunity to involved parties to hear each other and settle the dispute in an amicable manner. It is still anticipated that in the future mediation will prove popular with developing countries and more so with those in Asia in the context of international energy disputes and other international commercial disputes.
The above thus shows the bright and effective usage of ADR in the international community in the future but with adequate strengthening of the global fraternity as a whole.
Why should one opt for ADR?
- It provides an easier way to settle disputes.
- It is a much more flexible mechanism of resolving conflict.
- Lesser Hassle is involved.
- Time is saved when engaged in solving disputes via this method.
- It prevents dissertation of relationships which is common in cases spanning years.
- It is a less adversarial form of resolution.
- There is a deficient of over professionalization prevalent in the traditional courtroom.
- It is a Creative method problem solving.
- The Backlog and clogging of the judicial system is absent thus resulting in smooth redressal of dispute.
- There is an over reliance on the old system.
- A Lack of initiative from the legal practitioners has been observed.
- There is a lack of proper training of the professionals involved.
- Corruption is prevalent and can be effectively used to colour the resolution.
- Ignorance of the legal professionals.
- Poor communication between parties during proceedings.
- Attitude of the parties involved in the ADR.
- Spreading awareness amongst all variables of the legal system and the general populace.
- Capacity building in ADR
- Giving rise to Community-based ADR
- Educating the people on the technicalities and working of the ADR processes.
- Separate set of ADR litigants.
- Adequate payment to the litigants and other professionals.
- Use of online methods for dispute resolution.
- Developing legal aid to act as an organ to facilitate ADR.
- Aspiring confidence among people by both formal and informal methods.
- Building adequate Infrastructure.
- Building a multi-door courthouse system.
As has been seen in the preceding write-up ADR proves to be a promising sphere of conflict resolution. It is a process that invites the active participation from both the legal professionals and the parties involved and provides a host of opportunities for creativity .To cater to the same, it begs for additional skill set development on the behalf of the litigants and consistency with what our clients want and deserve.
It also seeks for the respective advocates to see past the ultimate “win” and understand the clients’ interests and goals and our ability to solve their problems. The fortitude of ADR and the essence of mechanisms seeks to create a win-win situation, instead of a win-lose ,a one in which the parties and litigants still struggle to understand and practice.
 Section 7 of the Arbitration and Conciliation Act , 1996,defines an arbitration agreement as “an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not.”
 ICC International Centre for ADR, https://iccwbo.org/dispute-resolution-services/mediation/icc-international-centre-for-adr/,as seen on 20 May,2020
 Anthony Jennings, Oil and Gas Exploration Contracts (Sweet & Maxwell, London, 2002), pp.22–23.
 Maniruzzaman: Problems and Challenges of International Energy Disputes:  I.E.L.T.R