Mains Marathon

Approach

• Start your answer by giving a brief about Alternative Dispute Resolution (ADR).
• Discuss the types of ADR.
• Discuss the advantages and disadvantages of ADR.
• Conclude your answer by giving a Way forward.

Answer

ADR is a mechanism of dispute resolution that is non adversarial, i.e., working together co-operatively to reach the best resolution for everyone.

ADR can be instrumental in reducing the burden of litigation on courts, while delivering a well-rounded and satisfying experience for the parties involved.

It provides the opportunity to "expand the pie" through creative, collaborative bargaining, and fulfill the interests driving their demands.

ADR is generally classified into the following types:

• Arbitration: The dispute is submitted to an arbitral tribunal which makes a decision (an "award") on the dispute that is mostly binding on the parties.
• Conciliation: A non-binding procedure in which an impartial third party, the conciliator, assists the parties to a dispute in reaching a mutually satisfactory agreed settlement of the dispute.
• Mediation: In mediation, an impartial person called a "mediator" helps the parties try to reach a mutually acceptable resolution of the dispute.
• Negotiation: A non-binding procedure in which discussions between the parties are initiated without the intervention of any third party with the object of arriving at a negotiated settlement to the dispute

Advantages of ADR

• The resolution of disputes takes place usually in private – helping maintains confidentiality.
• It is more viable, economical, and efficient.
• Procedural flexibility saves valuable time and money and absence of stress of a conventional trial.
• This often results in creative solutions, sustainable outcomes, greater satisfaction, and improved relationships.
• The possibility of ensuring that specialized expertise is available on the tribunal in the person of the arbitrator, mediator, conciliator or neutral adviser.
• Further, it offers greater direct control over the outcome. Personal relationships may also suffer less.

Disadvantages of ADR

• Lack of trained mediators: The essence of mediation lies in the role of the mediator as a facilitator. However, it has been experienced in India overall that there is a shortage of trained mediators in the country.
• Lack of referrals: Section 89 of the Code of Civil Procedure provides for reference of cases by the judges to one of the modes of alternative dispute resolution. However, experience shows that the Judges are not referring cases to the techniques of alternative dispute resolution.
• Appeals to regular courts: The parties almost invariably appeal against arbitration awards, resulting in long drawn-out disputes that can last up to 10 years.
• Lack of awareness: Lack of awareness about ADR mechanism amongst the people, especially in rural areas is also one of the obstacles in realization of full potential of ADR mechanism. There is also lack of awareness amongst judges, advocates and litigants regarding the effectiveness and usefulness of the process of mediation.

Way Forward

• The 129^th Law Commission report and Malimath Committee have recommended making it mandatory for the courts to refer disputes for resolution through ADR rather than litigation.
• Extensive training should be imparted to those who intend to act as a facilitator, mediator, and conciliator in the ADR process. Also, judicial officers must be trained to identify cases which would be suitable for taking recourse to a particular form of ADR.
• Setting up of Mediation Centres in all districts of each state with a view to mediate all disputes will bring about a profound change in the Indian Legal system.
• The award of the ADR should be made binding on the parties and no appeal to the court should be allowed unless it is arrived at fraudulently or if it is against public policy.
• ADR literacy program has to be done for mass awareness and awareness camp should be held to change the mindset of all concerned disputants, the lawyers and judges.