What is Alternative Dispute Resolution
Mahatma Gandhi defined the true purpose of the law, “I realized that the true function of a lawyer was to unite parties given as under. The lesson was so indelibly burnt unto me that the large part of my time, during the twenty years of my practice as a lawyer, was occupied in bringing about private compromises of hundreds of cases.” [1]While doing this, Gandhi recognized a less harmful way to resolve a dispute which is not through a long carried battle in the proximity of our courts, rather through a resolution in which every party maximizes their profits and minimize their losses, and that too in the current legal landscape, Alternative Dispute Resolution is the maximum suited way to get that result. As a result, Alternative Conflict Resolution (hence referred to as “ADR”) is an endeavour to develop equipment that is capable enough of offering an alternative to traditional dispute resolution techniques. ADR is a method of resolving disputes between adversaries who are unable to begin a negotiating process or achieve a settlement, whether for commercial or other reasons.[2]
Issues in ADR Mechanisms in India
In India, there are several difficulties concerning the ADR system. Arbitrators are usually limited to finding the solutions for financial disputes only. They cannot make instructions that are binding to one party to be doing something or to not do something. Also, they are not even able to alter the title of the property, either. Moreover, many safeguards were designed so that they can protect the parties in the court, which may not be present in ADR. Along with that, many different issues in the ADR mechanism in India include the limited opportunity for judicial review of the arbitrator’s decision. The giant arbitration service providers usually have a different mechanism for the internal appeals, if it is desired, but the decision should be final as well as binding on both the parties, and it can only be appealed to the court in very limited circumstances. This usually occurs when the lawyers determine that the initial arbitration contract is unenforceable. Because both participants should willingly agree to the arbitration, if the lawyers get one party’s approval by deception or any other illegal means, they cannot enforce it.[3]
What Role are the Courts Playing in India
The court system has played an important part in promoting and developing India into an arbitration-friendly economy, and the day will not be far away when India will be a major contender for having international arbitration proceedings. The Supreme Court of India, as well as the other High Courts, have embraced a realistic learning approach when a party disputes an arbitration verdict. In recent years, the Indian Supreme Court has taken an increasingly pro-arbitration stance. Countless cases were reported in which courts had upheld arbitration agreements regardless of minor defects, acknowledging the parties’ determination to address their legal disputes through arbitration. The Supreme Court allowed an arbitral proceeding despite an error by taking a pro-arbitration posture, reasoning that just because the participants’ intent to arbitrate was clear, the Court could render an arbitration agreement legitimate even though it had flaws.[4]
When parties have endeavoured to get around the Arbitration Act’s provisions, courts have traditionally been reluctant to interfere with the Act’s findings. The Supreme Court did not interfere with a judgment because the party had contested an agreement to be made under the Arbitration And conciliation Act while taking a pro-arbitration posture. Courts have likewise been cautious in granting anti-arbitration orders. The Bombay High Court ruled that if a side has a remedy under the Arbitration Act, then the court must not issue an anti-arbitration order by disregarding the Act’s stipulations.[5] In another instance, one of the arbitrators was nominated in partnership with some other party but did not follow the consented procedure while compelling the other party to request an order from the Court to prevent the arbitration tribunal from proceeding with the hearings. The Bombay High Court held that the party making false statements now has the right to object to the appointment of an arbitrator under Section 12 of the Arbitration Act, and this cannot be used to get around the Act’s provisions. Even though the law enforcement agencies have managed to remove barriers both during and after the arbitral proceedings by typically refraining from interfering with arbitral tribunal verdicts or passing other arbitration-friendly decisions, this was not enough to incentivize foreign corporations to use India as an arbitration facility. It could go a long way towards encouraging parties that the arbitration process in India will no longer be permitted to go on perpetually, in my opinion.[6]
Suggestions to Improve the ADR Mechanisms in India
The advancement of ADR mechanisms has not been particularly fruitful. As a result, the trend is to impose duty and responsibility on the Court.
1) Courts have the authority to issue instructions for the adoption of ADR methods by the respondents, and the court must play an essential role in this regard by providing guidance. The courts are also given authority to intervene at various phases of the process. However, these objectives will not be met until the necessary infrastructure and legal mechanisms are in place.
2) The institutional framework should be brought at 3 stages –
- Awareness – It can be accomplished through holding various seminars, workshops, and other events. The goal of the ADR literacy program and awareness program would be to transform the thinking of all involved lawyers, disputants, and judges.
- Acceptance – In this context, the ADR practitioners need to be very well trained by the universities in collaboration with various other institutes. Those who would like to function as facilitators, mediators, or conciliators will need extensive training. In the case of judicial officers and magistrates, training should be made a component of continued learning on various aspects of ADR.
- Implementation – To accomplish this, judicial personnel must be taught to recognize instances that would benefit from a particular type of ADR.
3) The flood of lawsuits cannot be prevented since the doors of justice cannot be barred. ADR Mechanisms must be made more functional. However, there is a pressing need to expand the outflow, either by bolstering the current system’s capacity or by seeking new terminals.
4) The establishment of Mediation Centres in every district of each state to mediate all conflicts will result in a significant shift in the Indian legal system. These arbitration centres would be run by a highly effective team of mediators drawn from the surrounding community.[7]
5) Many Indians are unable to afford legal representation. This kind of situation makes ordinary people, particularly those in rural areas, sceptical of the legal system. We need to expand the ADR mechanism outside urban areas. Gram Nyayalayas should handle the majority of the rural arbitration cases, which will allow the normal courts to focus on more complicated civil and criminal cases.
6) Additional ADR centres should be established to settle conflicts outside of the courtroom. ADR approaches will help individuals accomplish the aim of social justice, which would be the purpose of a successful court system.[8]
7) The fact that ADR isn’t binding is a huge flaw. It is still possible to file an appeal or postpone the award’s execution. “Delayed justice is justice denied.” If ADR is not practised in its real spirit, it loses its fundamental core. The judgment must be made enforceable on the parties, and no review should be authorized unless it was obtained unlawfully or in violation of public policy.[9]
Conclusion
People now have a new way to settle their disagreements thanks to the emergence of alternative dispute resolution. The rapid resolution of conflicts in Lok Adalat has gained widespread public support, giving ADR a fresh impetus that will undoubtedly lower the huge amount of cases pending in the tribunals. There is a pressing need for ADR mechanisms to provide access to the courts. The ADR initiative must be pushed ahead at a faster pace. This will significantly lessen the burden on the court system, in addition to offering immediate justice at the doorstep at a low cost. If they will be successfully implemented, they will truly achieve the purpose of providing social justice to the conflicting parties.
Author(s) Name: Anuj Chhabra (Rajiv Gandhi National University of Law, Patiala)
References:
[1] Bhatt, J., 2021. Eastern Book Company – Practical Lawyer. [online] Ebc-india.com. Available at: <http://www.ebc-india.com/lawyer/articles/2002v1a3.htm> [Accessed 12 October 2021].
[2] Singh, A., 2021. Judiciary Role in Promoting Alternative Dispute Resolution. [online] Law Times Journal. Available at: <https://lawtimesjournal.in/judiciary-promoting-adr/> [Accessed 13 October 2021].
[3] Tyagi, N., 2021. Role Of Judiciary In Making India An Arbitration Friendly Jurisdiction – Litigation, Mediation & Arbitration – India. [online] Mondaq.com. Available at: <https://www.mondaq.com/india/trials-appeals-compensation/1013892/role-of-judiciary-in-making-india-an-arbitration-friendly-jurisdiction> [Accessed 13 October 2021].
[4] Enercon India Limited & Ors. V. Enercon GmBH & Anr [2014] 5 SCC 1.
[5] Ravi Arya & Ors V. Palmview Overseas Limited & Ors. [2018] SCC OnLine Bom 19886.
[6] Kirmani, S., 2021. Role Of Judiciary In Making India An Arbitration Friendly Jurisdiction – Litigation, Mediation & Arbitration – India. [online] Mondaq.com. Available at: <https://www.mondaq.com/india/trials-appeals-compensation/1013892/role-of-judiciary-in-making-india-an-arbitration-friendly-jurisdiction> [Accessed 13 October 2021].
[7] Rao, P., 2017. Alternative Dispute Resolution: What is it and how it works. Universal Law Publishing Co. Pvt. Ltd.
[8] Government of India, Law Commission of India, 222nd report, ’Need for Justice-dispensation through ADR etc., at 1.6., 2021.
[9] Medha, N., 2018. Alternative Dispute Resolution in India-A study on concepts, techniques, provisions, problems in Implementation and solutions.
