Alternative modes of dispute resolution

Providing individuals and businesses with cheaper, and faster ways to resolve disputes

Syed Arsalan Abid
Srinagar, Publish Date: Oct 12 2017 11:25PM | Updated Date: Oct 12 2017 11:25PM
Alternative modes of dispute resolution

“The Law of Win-Win says, “Let’s not do it your way or my way; let’ s do it the best way”. 

--- Greg Anderson

In a fast evolving society human needs are bound to increase resulting into conflict of interests. People have become more aware about their individual rights and litigation becomes a usual part of their life due to rising rate of disputes among them. The problem is further compounded when there is lack of discipline in the litigation process judicial mechanism finds it difficult to manage up with the massive caseload. Particularly, in a modern technologically and economically well advanced society, litigation is a primary means of resolving disputes. When it fails to meet the need of the people there is an obvious need to search for new alternative methods of dispute resolution. It is in this context that the alternative modes of dispute resolution have gained importance in the present time.

The greatest trial that the judicial system faces today in our state is the delay in the disposal of cases and excessive cost of litigation. Alternative dispute resolution wads thought of as a weapon to meet this challenge. The average waiting time, both in the civil and criminal subordinate courts, can extent to several years. This denies fair justice. To this end, there are several barriers. The judiciary in our state is already suffering from a docket explosion. The huge backlog of cases only makes justice less accessible. The delay in the judicial system results in loss of public confidence on the confidence on the concept of justice.

A meaning of the judicial model is that the solution may not be well adapted to the parties needs and interests. The range of remedies available to the court is limited. An apology or acknowledgment of fault may not be awarded. The court is not in a position to try to recover a relationship, whether it is commercial or domestic. The court’s decision is also binary in nature, one is right and one is wrong. This separates the parties, creates the need for self-justification and worsens the dispute into an emotionally charged process. Alternative dispute resolution offers efficiency and can enhance the quality of dispute resolution by permitting a wider array of outcomes and more client participation. Alternative dispute resolution is rising universally, providing individuals and businesses with cheaper, and faster ways to resolve disputes. 

Our courts follow the adversarial method of adjudication, which uses a neutral decision-maker (Presiding Officer) who adjudicates disputes after they have been aired by the adversaries in contested proceedings. Alternative methods of disputes resolution, by contrast, are generally supposed to be less adversarial and reach speedier results because the neutral person may help to formulate the result while the process is under way. 

The basic difference between adversarial and non-adversarial methods of dispute resolution is that in adversarial system disputant wins, the other must lose and disputes are resolved by a third party through application of some principle of law. On the other hand, in the case of alternative dispute resolution all the parties can benefit through a creative solution to which each agrees and the situation is unique and therefore, need not be governed by any general principle except to the extent that the parties accept it. The parties know the facts and where their economic interests lie far better than any decision-making tribunal would. The solution crafted by the parties clearly spells out their respective rights and obligations, binds both sides, and is enforceable. 

Speedy disposal of cases is an important issue for all concerned with the proper administration of justice. Alternate Dispute Resolution is a less adversarial alternative to traditional litigation system. These methods can be employed in all those cases that can be litigated, such as disputes relating to insurance, trade, technology, divorce and other family matters etc. Alternate Dispute Resolution is not open to public, all hearings and awards are private and confidential. Common man gets trapped in year long litigation processes, which erodes the very purpose of delivery of justice. Common man with development in the sphere of Alternate Dispute Resolution will be provided with an opportunity to showcase their dispute, as well as reach resolution amicably, in a suitable and congenial atmosphere, without falling deep into the complexities of litigation.

 

Types of Alternate Dispute Resolution:

 

NEGOTIATION: In this process no intervention from the third party takes place, to bring about amicable settlement whereas advice of a skilled person or a social worker as a third party may be respected on certain issues. The participation from both the parties is voluntary in nature.

 

MEDIATION: In this case a third party, known as a mediator tries to facilitate the resolution process but he cannot impose the resolution, parties are to decide according to their convenience and terms.

 

ARBITRATION: In case of arbitration the third party adjudge and bring about peaceful settlement can very well impose the resolution on the parties. Arbitration generally grows when the parties through the contract agrees to resort to arbitration process, in case of disputes that may arise in future regarding contract terms and conditions.

 

CONCILLIATION: In this case, parties submit to the advice of a conciliator, who talks to the parties separately and try resolving their dispute.

 

Advantage of Alternate Dispute Resolution:

It is less expensive.

It is less time consuming.

It is free from technicalities as in the case of conducting cases in various Judicial Establishments.

The parties are free to discuss their difference of opinion.

The justice allowance system in our state has come under great stress for several reasons, mainly due to huge pendency of cases in various courts. Alternative Disputes Resolution is a mode of resolution of disputes through arbitration, conciliation or mediation which provides an alternative route for resolution of disputes instead of resolution of such disputes through courts. The principle of ADR are successfully adopted in the Our Legal System as an alternative to the justice delivery system.

Last but not the least is the fact that parties are having the feeling that there is no losing or winning feeling among the parties but at the same time they are having the feeling that their grievance is redressed and the relationship between the parties is restored. Therefore, Alternate Dispute Resolution is a need. Quality of justice suffers when there is an uneven delay in deciding piles of cases. When easier way has been resorted and found, then holding on to traditional concepts is not a wiser show. This technique is useful in dispensing Justice effectively, which is the basic pillar of every judicial system. Alternate Dispute Resolution is an appreciable step if taken, with serious concern and proper management. A common man can enjoy number of its advantages, from speedy justice, less expenses, deserved justice to secured confidentiality and final satisfaction. 

 

Syed Arsalan Abid, Advocate at Supreme Court of India, Delhi High Court