Dispute Redressal Mechanisms
- Indian judiciary is one of the oldest judicial systems, a world-renowned fact but nowadays it is also well-known fact that Indian judiciary is becoming inefficient to deal with pending cases, Indian courts are clogged with long unsettled cases.
- To deal with such a situation Alternative Dispute Resolution (ADR) can be helpful mechanism, it resolves conflict in a peaceful manner where the outcome is accepted by both the parties.
- Experiment with ADR’s was initiated with the passing of the Legal Services Authorities Act 1987 which provided for establishing Lok Adalats.
- In 2002, Section 89 of the Civil Procedure Code was modified to incorporate conciliation, mediation and pre-trial settlement methodologies for prompt and inexpensive resolution of disputes.
- The different mechanisms formed in India are Gram Sabha, Nyaya Panchayat, Lok Adalat, Family Court, Tribunals, Consumer Court, Indian Legislation on ADR, etc.
- In India, ADR is established on the constitutional basis of Article 14 (Equality before law) and Article 21 (Right to life and personal liberty).
- The Directive Principles of State Policy (DPSP) of Equal justice and free legal aid as engraved in Article 39-A of the Indian Constitution can also be achieved by the ADR.
Significance of ADR’s:
- The concept of Alternative Dispute Resolution (ADR) mechanism is capable of providing a substitute to the conventional methods of resolving disputes.
- ADR complements the judicial system by providing a substitute for conventional methods of adjudication or litigation.
- Reduce workload on the courts given that today about 3.3 crore cases are pending in Indian courts.
- Speedy disposal of cases thus timely justice by avoiding procedural delays associated with formal court system and thus fulfil fundamental right of speedy trial part of Article 21.
- Access to justice is improved as cost and time of litigation comes down thus duty of providing free legal aid to poor is met (39A).
- Saves common man from complex and adverse judicial process.
- ADR process offers confidentiality. Help preserve important social relationships for disputants especially in civil matters like divorce.
- Alternative Dispute Resolution mechanism provides scientifically developed techniques to Indian judiciary which helps in reducing the burden on the courts.
- ADR provides various modes of settlement including, arbitration, conciliation, mediation, negotiation and Lok Adalat.
Alternative Dispute Redressal (ADR) Mechanisms
The Arbitration, Mediation and Conciliation are major tools of Alternative Dispute Redressal System.
The Code of Civil Procedure (CPC), under Section 89 provides for the various modes of ADR
- Arbitration is a process in which a neutral third party or parties render a decision based on the merits of the case.
- In the Indian context the scope of the rules for the arbitration process are set out broadly by the provisions of the Arbitration and Conciliation Act 1998
- In the areas uncovered by the Statute the parties are free to design an arbitration process appropriate and relevant to their disputes.
- It is less formal than a trial, and the rules of evidence are often relaxed.
- Generally, there is no right to appeal an arbitrator’s decision.
- 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
- It is the most common method of alternative dispute resolution.
- The Process of mediation aims to facilitate the development of a consensual solution by the disputing parties.
- The Mediation process is overseen by a non-partisan third party – the Mediator.
- The authority of the mediator vests on the consent of the parties that he should facilitate their negotiations.
- The mediator does not decide the dispute but helps the parties communicate so they can try to settle the dispute themselves.
- Mediation leaves control of the outcome with the parties.
- This is a process by which resolution of disputes is achieved by compromise or voluntary agreement.
- In contrast to arbitration, the conciliator does not render a binding award. The parties are free to accept or reject the recommendations of the conciliator.
- The conciliator is in the Indian context, often a Government official whose report contains recommendations.
- Conciliation is a less formal form of arbitration.
- Constituted under the Legal Services Authorities Act, 1987,Lok Adalats have been given statutory status and are presided over by 2 or 3 people who are judges or advocates with experience.
- Lok Adalat is a forum where disputes/cases pending in the court of law or at pre-litigation stage are settled/ compromised amicably.
- They have been given powers of a civil court up to a limited extent.
- NALSA along with other Legal Services Institutions conducts Lok Adalats.
- The award (decision) made by the Lok Adalats is deemed to be a decree of a civil court and is final and binding on all parties and no appeal against such an award lies before any court of law.
- There is no court fee payable when a matter is filed in a Lok Adalat.
A) Nature of Cases to be referred to Lok Adalat
- Any case pending before any court.
- Any dispute which has not been brought before any court and is likely to be filed before the court.
- The Law Ministry had set up Gram Nyayalays in 2009 with an aim to provide a cost-effective forum at the grass-root level for the poor living in villages to settle legal matters.
- It was established by the Gram Nyayalayas Act, 2008.
- The Preamble to the Gram Nyayalaya Act envisages access to justice to the citizens at their doorstep with the assurance that opportunities for securing justice are not denied to any citizen by reason of any disability whatsoever
- Gram Nyayalayas are mobile village courts in India established for speedy and easy access to justice system in the rural areas of India
- The Gram Nyayalaya shall exercise the powers of both Criminal and Civil Courts
- They are aimed at providing inexpensive justice to people in rural areas at their doorsteps.
- The Act came into force on October 2, 2009 i.e. the birth anniversary of Mahatma Gandhi.
- The Gram Nyayalaya shall be established for every Panchayat at intermediate level or a group of contiguous Panchayats
A) Nyaya Panchayats or village courts
- They have been constituted at the grassroots level to resolve petty civil and criminal cases.
- These courts are guided by local traditions, culture and behavioral patterns of the village community and thus instill confidence in the administration of justice.
- Emphasis is laid on mutual settlement.
Advantages of ADRs
- Speedy justice as it can be conducted at suitable places, arranged very fast, in local language too, even for the illiterates.
- The resolution of disputes takes place usually in private – helping maintain confidentiality.
- Procedural flexibility 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.
- Saves from lengthy court procedure. The procedural laws and evidence act are not strictly followed.
- Are less expensive than normal judicial process as parties do not have to bear any expenses.
- Helps in solving problems of backlog cases and hence helpreduce burden of judiciary.
- It is based on mutual understanding between the parties and settlement is done as expeditiously as possible.
- Justice based on Principles of Natural Justice rather than cumbersome procedure.
Measures that have been adopted to improve the framework of ADR in India are:
- The Law Commission in its 129th report and Malimath Committee recommend making it mandatory for the courts to refer disputes for resolutions through alternate means rather than litigation.
- The changes made through the Arbitration and Conciliation (Amendment) Act, 2015 have brought the Indian arbitration regime closer to the international standards and to the UNCITRAL Model Law on International Commercial Arbitration.
- Section 80 of the CPC provides for a compulsory notice of 60 days to the opposite party before filing a suit in a Court, in case of disputes by or against the Government. The notice is to allow the parties to explore the possibility of settling the disputes outside the court.
- Mediation Centers have been appointed across States in India.
- The Family Courts across India are specifically focusing on settlement of family related matters through mediation.
- The National Legal Services Day is celebrated on 9th November to spread awareness for ensuring reasonable fair and justice procedure for all citizens
- Many times parties appeal decisions of ADR in judiciary thus negating their positives.
- Many ADR mechanisms do not have adequately qualified facilitators, which affects quality of decision as well as time.
- Overall ignorance and lack of awareness among general public
- ADR have natural limitations in some cases a decision favouring one over other party has to be made and settlement cannot be reached.
- In reality, some of ADR in the end prove to be expensive.
- Opposition from regular judiciary due to quality and undermining its sphere.
- Other Issues related to ADR’s include lack of manpower, lack of experts, arbitrary procedure.
ADR has proven successful in clearing the backlog of cases in various levels of the judiciary – Lok Adalats alone have disposed more than 50 lakh cases every year on average in the last three years.
- Legislations with regards to different ADR mechanism should be reformed and provided adequate power to enforce its decisions.
- Selection of mediators and facilitators be institutionalized and quality specified and standardized.
- A code of conduct and ethics should be enacted for non-biased working of ADR.
- Increasing awareness regarding ADR especially Lok Adalats.
- The National and State Legal Services Authorities should disseminate more information regarding these, so they become the first option explored by potential litigants.
Today it has become an international phenomenon to resolve most disputes through arbitration and not through normal judicial system. Majority of the persons do not want to become involved in lawsuits due to delays, high costs, and unwanted publicity. ADR’s provide best solution to these concerns. Hence, there is strong case to further strengthen ADR mechanisms in India.