Introduction of Alternative Dispute Resolution
(..1..)
QUESTION BANK
- 1. Explain the concept of ADR and its growing importance in dispute resolution.
- 2. Give the meaning of alternative dispute resolution (ADR) system. State which disputes are suitable to ADR process?
Q.3. What is Alternative Dispute Resolution (ADR)? For which disputes it is more suitable?
Short Notes
- Alternative Dispute Resolution in Co-operative and Banking matters.
- Need of ADRs.
- Co-operative matters.
- ADR in consumer matters.
Table of Content
(Alternative Dispute Resolution) 1
III. Need for the Alternative Dispute Resolution:- 3
- Less time consuming:- 3
- Cost effective:- 3
- Free from technicalities:- 3
- People can freely express themselves:- 4
- Effective way of dispute resolution:- 4
- Preserve interest of parties:- 4
- Various Modes of alternate dispute resolution:- 4
“Don’t fight; let us resolve the dispute amicably.”
I. Introduction:-
In India, presently, we have almost four crore pending cases before the Supreme Court, various High Courts, and a number of District and Subordinate Courts. Indian judiciary is overburdened. Moreover, it takes a lot of time and cost in deciding cases before a Court. The maxims “delay defeats justice” and “justice delayed is justice denied” suggest that delay in disposal of cases defeats justice. Delay in deciding cases is the biggest drawback of the administration of justice in India as well as worldwide. Delay, expensive, overburdened and rigidness are main drawbacks of a conventional judicial system worldwide. It makes justice unavailable to all, specifically to poor persons.
Therefore, a dire need was felt to provide cheap, simple, quick and accessible justice to all. To achieve these objects, some alternatives to conventional judicial system were found out. These alternatives to the conventional judicial system are popularly known as “Alternative Dispute Resolution” or “ADR” in short. It includes arbitration, conciliation, mediation, Lok-Adalat, negotiation etc.
II. History of alternative dispute resolution in India:-
The first law on alternate dispute resolution in India was the Indian Arbitration Act, 1940. The Act was dealing with the domestic arbitration i.e. arbitration between the parties within India. The second law in India on the point of international arbitration was the Arbitration (Protocol and Convention) Act, 1937 and the Foreign Awards (Recognition and Enforcement) Act, 1961.
The abovementioned Acts in flux of time were found unable to achieve its objectives. Therefore, the Indian government brought Arbitration and Conciliation Ordinance, in 1996. The ordinance was enacted into law in August 1996. The Act is very important step towards settlement of dispute amicably. The Act, provides for settlement of dispute outside the court through the means of arbitration, conciliation, mediation, etc.
The Law Commission of India in its 129th report in 1988, had advocated the need for amicable settlement of disputes between the parties. Moreover, the Malimath Committee in 1989, had recommended to make it mandatory for the courts to refer disputes pending before them, to resolve through alternate means after framing of issues. The committee suggested that the alternate dispute resolution is viable alternative to conventional court litigations.
After taking into consideration various reports of committees, S. 89 of the Civil Procedure Code, 1908 was amended in the year, 1999 and was given effect from 01/07/2002. S. 89 provides for settlement of dispute outside the Court through, arbitration, conciliation, judicial settlement, mediation etc. Moreover, Order X rules
1-A to 1-C also deal with the powers of a court to refer the matter for settlement.
The Constitution of India also directs that the justice should be made available to poor and needy.
III. Need for the Alternative Dispute Resolution:-
The ADR[2] has following advances over conventional judicial system. These are the needs of present days to have ADR.
1. Less time consuming:-
Parties to the dispute resolve their disputes in short period of time compared to courts.
2. Cost effective:-
ADR saves lot of money of the disputing parties.
3. Free from technicalities:-
ADR is free from technicalities of courts, because informal ways are applied to arrive at amiable settlement.
4. People can freely express themselves:-
The disputing parties are free from fear of Court, therefore, they can freely express themselves. They can reveal the true facts without disclosing it to any court.
5. Effective way of dispute resolution:-
There is always a chance of restoring relations of the partiers back. It is because, the parties discuss their issues together. It prevents further conflict between the parties and helps in maintaining good relationship between them.
6. Preserve interest of parties:-
It preserves the best interest of the parties.
IV. Various Modes of alternate dispute resolution:-
The settlement of disputes outside the court can be made through-
(a) Arbitration[3]:-
Arbitration is a procedure in which a dispute is submitted by agreement of the parties to one or more arbitrators who make a binding decision on the dispute.
It is a form of alternate dispute resolution. It is a way to resolve dispute outside the court. The dispute is decided by one or more persons known as ‘arbitrator’, ‘arbitrators’ or ‘arbitral tribunal’. The Arbitrator renders the ‘arbitration award’ (i.e. judgment) which is legally binding on both sides to the dispute and is enforceable in the court[4].
(b) Conciliation[5]:-
‘Conciliation’ is an impartial process whereby the parties to the dispute use a conciliator, who meets with the parties both separately and together in an attempt to resolve their differences[6]. Thus the conciliator acts to bring parties to the dispute at amicable settlement among themselves.
It is non-binding process. The conciliator cannot pass award to bind both the parties. Neither it is enforceable in Court.
(c) Mediation[7]:-
Mediation is the procedure in which parties discusses their disputes with the assistance of a trained impartial third person or persons, who assist them in reaching a settlement[8].
(d) Negotiation[9]:-
‘Negotiation’ is a process in which decisions and deliberations take place between the parties or representatives of the parties specifically without intervention of a third party. The representatives to negotiation are called as ‘negotiators’.
(e) Lok-Adalat[10]:-
The ‘Lok-Adalat’ means ‘people’s Court’. Through it, the disputes pending before the court or even the future dispute (which has not yet reached at court) are settled through negotiation, conciliation, etc. with assistance of specifically trained and experienced conciliators. This is called as a judicial settlement.
These topics are discussed in detail at appropriate places in the notes.
V. Role of Alternate dispute resolution in different matters (Discussed at appropriate place in coming topics):-
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[1] वैकल्पिक विवाद समाधान / कोटZ के बिना विवाद निवारण [पर्यायी तंटा निवारण- न्यायाल्यास पर्यायी तंटा निवारण व्यवस्था]
(Henceforth some difficult English words/ concepts are translated into Hindi and also in Marathi. The purpose of the translation is to make the concept simple and understandable.
[2] Alternative dispute resolution for short is called as “ADR”.
[3] पंचनिर्णय [लवाद]
[4] “पंचनिर्णय” एक ऐसी प्रक्रिया है जिसमे (१) एक या एक से अधिक पंचोन्को (२) पार्टीयो के समझौते द्वारा (३) विवाद प्रस्तुत किया जाता है| (४) जो विवाद पार बाध्यकारी निर्यण लेते है|
[5] सलोखा/ समेट
[6] “सुलाहा” एक निष्पक्ष प्रक्रिया है जिसके तहेत विवाद के पक्षकार एक सुलह्कर्ता का उपयोग करते है| जो अपने मतभेदो को सुलझाने के प्रयास मे पार्टीयोके साथ अलग-अलग और एक साथ मिलते है|
[7] मध्यस्थि
[8] मध्यास्थाता वाह प्रक्रिया है जिसमे पार्टीया अपने विवाद पार एक प्रक्षिक्षित निष्पक्ष तिसरे व्यक्ती या व्यक्तियो कि सह्यात्ता से चर्चा करते है |
[9] बातचीत एक ऐसी प्रक्रिया है जिसमे पार्टीयो केप्रतिनिधीयो के बीच विशेष रूप से तिसरे पक्ष के हस्तक्षेप के बिना निर्णय और विचार-विमार्श होता है| वार्ता के प्रतीनिधियो को ‘वार्ताकार’ कहा जाता है|
[10] लोकन्यायालय