The reasons for choosing or not choosing ADR
The alternative mechanisms of dispute resolution are less expensive, quicker, and less intimidating than the machinery of courts. They do not involve court fees, the procedure adopted in these forums is less technical and presence of lawyers is not mandatory. Parties can go directly and plead before these forums. Also, they are more sensitive to the concerns of the disputing parties. They dispense better justice, result in less alienation between the parties and satisfy their desire to retain a certain degree of control over the process of resolution[1].
Whether the defects of the court system influence the choice?
With the adoption of the Constitution guaranteeing freedoms to the citizens and the establishment of an independent and powerful judiciary, with powers of judicial review, the spread of literacy and the considerable increase in the level of awareness of their social, economic and political rights by larger sections of the population, the demands on the justice delivery and dispute resolving institutions came under tremendous pressure, as reflected in the number of cases that are taken to the courts. The most telling index of the malaise is the sheer size and number of cases pending in courts. While the number of the fresh institution of cases steadily increased, the rate of disposal of cases, especially at lower levels, remained static or worse. All this prompted the search for alternatives to court litigation. Also, the justice system is top heavy – lawyers, courts, and outdated legal practices and jargon dominate it. Traditional civil litigation imposes substantial costs and delays long before a trial commences. Further, the congestion of trial calendars in most courts, caused in part by a substantial criminal docket, contributes substantially to that cost and delay. In this environment, alternative processes for dispute resolution offer many advantages.
The realization was there that it is in no-one’s interest to create a litigious society. The government wanted people to make responsible choices about whether a case is worth pursuing; whether to proceed by negotiation, court action, or in some other way; and how far to take a relatively minor issue. This has led to the Government focusing on legal aid spending on social welfare schemes and improving the range of options available to people for resolving disputes without a formal court adjudication process. Therefore, several different models of ADR, including mediation, arbitration and ombudsman schemes, are being made available to citizens. ADR offers a number of possible advantages. It can be less formal and adversarial; and in some cases, it may allow disputes to be resolved more quickly and cheaply.
Whether any cultural or mental factors influence the choice of ADR?
The interest in ADR movement in this country also stems from a desire to revive and reform old and traditional mediation mechanism, that was in place before the advent of British rule. The mediation, conciliation and negotiation adopted by various ADR providing forums preserve important social relationships between disputing parties. All this has led to an increase in the number of filing of suits and complaints before these forums.
Whether the cost and time are comparative advantages of ADR to litigation?
Time Since every person’s time has value in social life and the value is measured in terms of either utility or in money, a person, who is capable of producing a most socially useful product or service with appropriate skill or specialization, his time is more valuable than a person, who has no such skill or specialization. This is also applicable in case of a company or an Institution. If such individuals or company are locked up in any dispute, the same will result in wasting of their time in an unproductive arena by diverting their mental and physical faculties from other than their own useful purposes or faculties. The time that is wasted in this manner is nothing but wasting more of the social energies in the wasteful expenditure, which does not contribute to the wealth of the country. Any effort in a reduction in wastage of one’s time in mundane and unproductive litigation is definitely a contributing factor for the efficiency and growth of an individual and the State. The need for ADR has become more urgent to Indian people in view of the opening up of the borders to the global competition. There is the desirability of disputants taking advantage of ADR, which provides procedural flexibility, saves valuable time and money and avoids the stress of a conventional trial.
Whether there are any institutional constraints on the existing ADR?
Arbitration, once considered an alternative to litigation, is now afflicted by the same problems of cost, delay, complexity, and dependence on legal representation. Many questions remain regarding their actual success in increasing efficiency and in providing broader access to justice. Even though participants are generally pleased with the conciliatory, comprehensible, and flexible procedures of ADR, but the efficiency gains are minimal. The study of those cases, which were appealed from the arbitral tribunal to the Supreme Court of India led to the conclusion that the aggregate costs for the courts, and average time to disposition of cases, had not declined. A second challenge concerns the consequences of ADR on access to justice. Critics argue that the restoration of traditional dispute resolution mechanisms, as for example in India, subjects women to the application of discriminatory social norms rather than the relatively fair justice of a rights-based legal system[2]. Coming to the effectiveness of ADR, unlike a judge, a mediator or arbitrator has no power to order a party to appear and defend a claim. Nor can a mediator or arbitrator compel the losing side to comply with a decision. Sometimes the desire to remain on good terms with the other party or to preserve one’s reputation provides the incentive to submit to an ADR process and abide by its outcome.
Whether people trust ADR?
Even though with the emerging globalization, more and more matters are being taken out of the normal courts and vested in regulators[3]. people still faith in the higher judiciary. This is evident from the number of appeals that come before the high courts and the Supreme Court of India from awards of arbitrator and appellate tribunal bodies. (0 Whether people trust ADR? Even though with the emerging globalization, more and more matters are being taken out of the normal courts and vested in regulators. Y’ people still faith in the higher judiciary. This is evident from the number of appeals that come before the high courts and the Supreme Court of India from awards of arbitrator and appellate tribunal bodies.
Can the court system be replaced by the ADR?
The justice system has to serve everyone, regardless of means. Modem ways of funding litigation, like ‘no win, no fee’ agreements, and a new “fast-track” court system, leading to fixed-cost hearings, has thrown open access to justice to people on modest income who do not qualify for legal aid, and dare not risk going to court at their own expense because of the unpredictable cost. These changes will help to create a justice system that is no longer daunting, uncertain and prohibitively expensive that ordinary people have no real access to justice. People will be able to find out what their rights are, and if necessary protect and enforce them, at a predictable and reasonable cost in a system which serves everyone. These speedier justice delivery systems, through the process of reduction in procedural technicalities, help to reduce the large number of cases on hand. ADR procedures help in the reduction of the work-load of the courts and thereby help them to focus attention on the cases which ought to be decided by courts. 106 All this only goes to prove that the existence of both, court system, as well as ADR providing forms, has become life support system of justice system of the country.
Edited by – Sakshi Agarwal
Quality Check – Ankita Jha
Approved & Published by – Sakshi Raje
References:
[1] Union Minister Arun Jaitley, March 14, 2001; See http://pib.nic.in.
[2] Whitson, Sarah Leah, ” ‘Neither Fish, nor Flesh, nor Good Red Herring’ Lok Adalats: an Experiment in Informal Dispute Resolution in India.”, Hastings International and Comparative Law Review15:391-445 (1991-1992)
[3] Electricity Regulatory Commissions, now set-up in almost every state in India.
