Alternative Dispute Resolution India Notes
Alternative Dispute Resolution India Notes Alternate Dispute Resolution (ADR) provides a workable and alternate means of conflict resolution to the traditional judicial system. It is akin to a fast-track system for settling disputes. It saves the parties involved from going into adversarial litigation. ADR is also more flexible. The parties involved in ADR do not develop strained relations. Instead, their disputes are resolved in a much more cordial and cost-effective manner.
The Arbitration Act, 1940, was falling short of meeting both the International and domestic standards of dispute resolution. Inordinate delay and court intervention defeated the very purpose of arbitration as a mechanism for the speedy resolution of disputes. The need was felt by various quarters, including the Supreme Court of India and Trade and Industry, for drastic changes to the Act to aid expeditious resolution of disputes.
All this resulted in the Arbitration and Conciliation Act, 1996. The law related to arbitration and conciliation is the same as exists in advanced countries. The Act gives statutory recognition to conciliation as a means of settling disputes. It also guarantees the independence and impartiality of the arbitrators irrespective of their nationality.
Part I of the Act formalizes the process of arbitration. Part II deals with the enforcement of foreign awards under the New York and Geneva Conventions and Part III deals with formalizing the process of conciliation.
Under the said Act, there are several mechanisms for the resolution of disputes. ARBITRATION ACT
Arbitration: There must be a written, valid agreement between the parties involved in order for the mechanism of arbitration to become operational. Any party to the dispute can initiate the process of appointment of an arbitrator. In case, the other party does not cooperate, the matter can be taken to the Chief Justice for the appointment of an arbitrator. A party can challenge the appointment of an arbitrator only on two grounds—when the qualification or the impartiality of the arbitrator is under reasonable doubt.
An arbitration tribunal is thus formed consisting of a sole arbitrator or a panel of arbitrators. There can be no judicial intervention in the arbitration process, except for some interim measures. Any appeal challenging the jurisdiction of the tribunal has to be brought before the tribunal itself. The party can only approach a court after the tribunal makes an award.
Conciliation: This process does not require the existence of a prior agreement. Any party can request the other for the appointment of a conciliator. When more than one conciliator is appointed, they must act jointly. Parties then submit their statements to the conciliator, along with a copy of the same to the other party, describing the nature of the dispute. They may even submit suggestions for the resolution of the dispute. The conciliator looks into the matter and draws the terms of the settlement and sends it to the parties for acceptance. Once signed, such a settlement is final and binding on both parties.
Mediation: Rather than accepting the settlement imposed by a third party, here the parties to the dispute themselves, determine the conditions of the settlement. The role of the mediators helps the parties reach an agreement on the disputed matter. All parties must view the mediators as impartial.
Mediation may be used to resolve a wide range of disputes, such as legal, commercial, diplomatic and also family matters.
Negotiation: It is the primary method of alternative dispute resolution. Negotiations not only happen in personal situations and everyday life but also between nations, businesses, non-profit organizations, legal proceedings etc. People involved professionally in negotiations are called negotiators. They usually specialize in various areas as peace negotiators, hostage negotiators, union negotiators etc. The process of negotiation involves dialogue aimed at resolution of disputes, to bargain for individual or collective advantage, to bring about an agreement on the courses of action available, and to produce outcomes to satisfy various interests.
Lok Adalat: Lok Adalat or ‘People’s Court’, constituted under the National Legal Services Authority Act, 1987, is a uniquely Indian approach to ADR. These Adalats are presided over by a retired or sitting judge as chairperson and two other members, usually a social worker and an advocate.
The focus of Lok Adalats is on compromise. When no compromise is reached between the parties, the matter goes back to the court. However, if a compromise is reached and the award is made, it is binding on the parties. It is imposed as a decree of the civil court. This award is final and cannot be appealed, not even under Article 226 of the Constitution of India as the judgment is based on the consent of the parties involved.
It is the need of the hour that the alternative dispute resolution mechanism should be given some teeth in order to have an attitudinal change of people seeking hassle-free redressal of their grievances. The very essence of ADR is lost if it is not implemented in the true spirit. A need for instilling awareness is imminent to bring the requisite attitudinal change.