What are the various alternative dispute redressal methods? Critically analyse the effectiveness of Alternate Dispute Redressal mechanisms in serving Justice.
Alternative Dispute Resolution (ADR) is a process to settle disputes among parties by using unconventional methods of dispute resolution instead of courts. It is a process of resolving disputes by mediation, arbitration and conciliation outside the purview of traditional court system.
VARIOUS MECHANISMS USED FOR ADR
- Arbitration is the process of hearing and determining of a dispute between the parties by persons chosen or agreed to by them. The object of arbitration is to obtain the fair resolution of disputes by an impartial tribunal. Arbitration can start only if there exists a valid Arbitration Agreement between the parties prior to the emergence of the dispute.
- Conciliation is a less formal form of arbitration. This process does not require an existence of any prior agreement. Any party can request the other party to appoint a conciliator. It is the process of facilitating an amicable settlement between the parties. One conciliator is preferred but two or three are also allowed. Conciliator draws up the terms of settlement and sends it to the parties for their acceptance. If both the parties sign the settlement document, it shall be final and binding on both.
- Mediation aims to assist two disputants in reaching an agreement. The parties themselves determine the conditions of any settlements reached— rather than accepting something imposed by a third party. Mediators use appropriate techniques to open and improve dialogue between disputants, aiming to help the parties reach an agreement on the disputed matter.
- Negotiation: This form of ADR is often overlooked because of how obvious it is. In negotiation, there is no impartial third party to assist the parties in their negotiations, so the parties work together to come to a compromise.
- Lok Adalats: The National Legal Services Authority (NALSA) along with other Legal Services Institutions conducts Lok Adalats. NLSA has been constituted under the Legal Services Authorities Act, 1987 to provide free Legal Services to the weaker sections of the society and to organize Lok Adalats for amicable settlement of disputes. NALSA along with other Legal Services Institutions conducts Lok Adalats.
THE EFFECTIVENESS OF ALTERNATE DISPUTE REDRESSAL MECHANISMS
- Resolution without going to courts: Because of the availability of ADR institutions, a lot of cases get resolved without going to the courts. This means that the courts which already have a plethora of pending cases can be relieved of many new cases.
- Courts relieved of technical cases: There are many cases which need technical expertise for their effective resolution. Such technical expertise at times is not present with the ordinary courts which lead to pendency of cases and slow resolution. Various ADR institutions like Tribunals, Lok-Adalats have such experts, thus leading to unburdening of judiciary from such technical cases.
- No formal procedure: As it does not follow the formal procedure of the courts, it is free from technicalities as in the case of conducting cases in law Courts. This again leads to less pendency of cases and unburdening of judiciary.
CHALLENGES IN ADR
Although ADR institutions have eased the work of ordinary courts, still the complete unburdening of judiciary has not been possible and hence adding to time delays as well as costly justice. This is because:
- Judgements passed by the ADR institutions can be appealed in the court. Thus, a majority of the cases decided through ADR actually end up being appealed in and decided by the ordinary courts. This refutes the entire purpose of ADR.
- Although ADR institutions have good technical experts; they do not have legal experts like that in courts. This is the reason why the parties try to resolve their disputes through the courts in the first hand.
- Since ADR does not follow formal procedure of the courts; their decisions may not be the same in different though identical cases. This leads to the lack of predictability/uniformity and hence the loss of faith in ADR institutions. The parties thus favour courts due to greater predictability.
The first and foremost need is to constitutionalism the mechanism of ADR and make their decisions of Ombudsman binding on the government for better efficacy of ADR mechanism. There is also a need for more ADR centres in rural and tribal areas to provide for poor access to justice as well as bringing down the cost of justice for litigant. This will also help address the problem of delayed justice; as it is said “Justice delayed is justice denied”