"Perspective of Alternate Dispute Resolution"

ADR is being increasingly acknowledged in the field of law and commercial sectors both at national and international levels. Its diverse methods have helped parties to resolve their disputes at their own terms cheaply and expeditiously.

-Chapter 02-

Alternate Dispute Resolution at National level

Alternate Dispute Resolution system is not a new phenomenon for the people of this country; it has been prevalent in India since time immemorial. Ancient system of dispute resolution made a significant contribution, in reaching resolution of disputes relating to family, social groups and also minor disputes relating to trade and property. Village Level Institutions played the leading role, where disputes were resolved by elders, comprising Council of Village (popularly called Panchayats), which was an informal way of mediation. In earlier days disputes hardly reached courts.

Decisions given by the elderly council were respected by all. But subsequently boon accompanied bane, the very system lost its aura due to intervention of political and communal elements. Before coming of the Legal Services Authority Act, 1985, Lok Nyayalayas did not have statutory recognition and also presently, the Gram Nayayalayas Bill, 2007, establishes Gram Nayayalayas, as the lowest tier of the judiciary for rural areas. Litigation in India is generally longitudinal and expensive. Hence, there has been considerable amount of efforts by legislature and judiciary to make ADR more prevalent among societies.

There are two different ways to adopt the process of Alternate Dispute Resolution :
#Alternate Dispute Resolution with filing of a lawsuit: In this case by way of mediation, conciliation etc either the judge or some court officer will make an attempt to resolve the disputes between the parties and reach an amicable settlement. If the positive happens case is dismissed thereby saving the time of the court and expenses of the parties. The very practice has been followed via system of Lok Adalats in India.

# Alternate Dispute Resolution by way of free standing: This is generally the case of commercial arbitration, where the parties to the dispute agree, not only to have a third party as their arbitrator, but also agrees to what rules shall be binding and whether the decision of the third party will be either binding or advisory in nature.

-Chapter 03-

Legislative efforts towards ADR in India:

In India credit for springing up ADR goes to East India Company. It gave the statutory recognition to the said forum under various acts such as:
Bengal Regulation Act of 1772 and Bengal regulation act of 1781 which provided parties to submit the dispute to the arbitrator, appointed after mutual agreement and whose verdict shall be binding on both the parties.

Alternate dispute redressal received legislative recognition in India, after the enactment of Civil Procedure Code, 1859 which provided :

• Sec 312 - reference to Arbitration in pending suit.
•  Sec 312 – 325 – laid down the procedure for arbitration.
• Sec 326 – 327 – provided for arbitration without courts intervention.
• Arbitration is also recognized under Indian Contract Act, 1872 as the first exception to Section 28, which envisages that any agreement restraining legal proceedings is void.
• The Legal Service Authorities Act, 1987 brought another mechanism under ADR with the establishment of Lok Adalat system.
• The Industrial Dispute Act, 1947 statutorily recognized conciliation as an effective method of dispute resolution.

The Arbitration Act of 1899 was the first exclusive legislation on arbitration. Subsequently the said act was repealed and was replaced by Arbitration Act 1940. Arbitration Act of 1940 also failed to give desired result and in realizing its objective of enactment. Then various recommendations of successive Law Commissions and policy of liberalization in the field of commerce acted as a catalyst in the growth of ADR mechanism. 

After the liberalization of Indian economy which opened the gates for inflow of foreign investment; Government of India on the UNCITRAL model enacted the Arbitration and Conciliation Act 1996 which repealed the 1940 Act.

The main objectives of the Act are:-

• To cover international and domestic arbitration comprehensively.
•  To minimize the role of courts and treat arbitral award as a decree of court.
• To introduce concept of conciliation.
•  Lastly, to provide speedy and alternative solution to the dispute.

Section 89 was introduced to Civil Procedure Code 1908, which formulates four methods to settle disputes outside the court namely, Arbitration, Conciliation, Mediation and Lok Adalats. In case of Advocate Bar Association v. UOI Supreme Court directed the setting up of committee that would look into the implementation of various provisions, including Section 89.

Section 89(1) of Civil Procedure Code provides for settlement of disputes outside court. There are certain lacunas in this sections that goes unnoticed, firstly whether reference by court to Alternate Dispute Resolution is discretionary or mandatory, secondly, few details in relation to opinion of expert mediators, conciliators incentives, compensation and much more are less comprehensive and explanatory.

At the same time the Constitution of India puts arbitration as a Directive Principle of State Policy. Article 52(d) provides that the state should encourage settlement of international disputes by arbitration.

-Chapter 04-

Judicial effort towards ADR in India:

In the case of Hussainara Khatoon v. Home Secretary, State of Bihar Supreme Court has held that “right to speedy trial is a fundamental right implicit in the guarantee of life and personal liberty enshrined in Article 21 of Indian Constitution”.

Indian judiciary has also played a substantial role in upgradation of ADR mechanism. The apex court has recognized the alternate forum in its various decisions.

In Guru Nanak Foundation v. Rattan & Sons court observed that “Interminable, time consuming, complex and expensive court procedures impelled jurists to search for an alternative forum, less formal, more effective and speedy for resolution of disputes avoiding procedure claptrap”

The realization of concepts like speedy trial and free legal aid by apex court in various cases has also helped in the upgradation of alternate dispute redressal mechanism. One of the biggest step in the lines of development of the said machinery was maintaining the validity of “fastrack courts” scheme as laid down in Brijmohan v. UOI.

Fastrack court scheme has done wonders in disposing number of pending cases. These courts have disposed of 7.94 lakh cases out of 15.28 lakh cases transferred at the rate of 52.09% and recent statistics show that the number of pending cases has reduced to 6 lakhs.

        

-Chapter 05-

ADR at International Level:

The history of Alternate dispute resolution forum at international level can be traced back from the period of Renaissance, when Catholic Popes acted as arbitrators in conflicts between European countries. One of the successful examples of the said mechanism is the international mediation conducted by former U.S President Jimmy Carter in Bosnia. ADR has given fruitful results not only in international political arena but also in international business world in settling commercial disputes among many corporate houses for e.g. Settlement of a longstanding commercial dispute between General Motors Co. and Johnson Matthey Inc., which was pending in US District Court since past few years.

The biggest stepping stone in the field of International ADR is the adoption of   UNCITRAL [United Nation Commission on International Trade Law] model on international commercial arbitration. An important feature of the said model is that it has harmonized the concept of arbitration and conciliation in order to designate it for universal application. General Assembly of UN also recommended its member countries to adopt this model in view to have uniform laws for ADR mechanism.

Other important international conventions on arbitration are:-

· The Geneva Protocol on Arbitration clauses of 1923.
· The Geneva Convention on the execution of foreign award,1927
· The New York Convention of 1958 on the recognition and enforcement of foreign arbitral award.

In India Part III of Arbitration and Conciliation Act, 1996 provides for International Commercial Arbitration.

Another step in strengthening the international commercial arbitration is the establishment of various institutions such as:-

1.  ICC – International Court of Arbitration of the International Chamber of Commerce.
2.  Arbitration and mediation centre of World Intellectual Property Organization
3. AAA – International centre for dispute resolution of the American Arbitration Association and others have explored new avenues in the ADR field.

-Chapter 06-

Subtypes of Alternate Dispute Resolution:

ARBITRATION:  The process of arbitration can start only if there exists a valid Arbitration Agreement between the parties prior to the emergence of the dispute. As per Section 7, such an agreement must be in writing. The contract regarding which the dispute exists, must either contain an arbitration clause or must refer to a separate document signed by the parties containing the arbitration agreement. The existence of an arbitration agreement can also be inferred by written correspondence such as letters, talex, or telegrams which provide a record of the agreement. An exchange of statement of claim and defence in which existence of an arbitration agreement is alleged by one party and not denied by other is also considered as valid written arbitration agreement.

Any party to the dispute can start the process of appointing arbitrator and if the other party does not cooperate, the party can approach the office of Chief Justice for appointment of an arbitrator. There are only two grounds upon which a party can challenge the appointment of an arbitrator – reasonable doubt in the impartiality of the arbitrator and the lack of proper qualification of the arbitrator as required by the arbitration agreement. A sole arbitrator or a panel of arbitrators so appointed constitute the Arbitration Tribunal.

Except for some interim measures, there is very little scope for judicial intervention in the arbitration process. The arbitration tribunal has jurisdiction over its own jurisdiction. Thus, if a party wants to challenge the jurisdiction of the arbitration tribunal, it can do so only before the tribunal itself. If the tribunal rejects the request, there is little the party can do accept to approach a court after the tribunal makes an award. Section 34 provides certain grounds upon which a party can appeal to the principal civil court of original jurisdiction for setting aside the award. Once the period for filing an appeal for setting aside an award is over, or if such an appeal is rejected, the award is binding on the parties and is considered as a decree of the court.

CONCILLIATION: Conciliation is a less formal form of arbitration. This process does not require an existence of any prior agreement. Any party can request the other party to appoint a conciliator. One conciliator is preferred but two or three are also allowed. In case of multiple conciliators, all must act jointly. If a party rejects an offer to conciliate, there can be no conciliation.

Parties may submit statements to the conciliator describing the general nature of the dispute and the points at issue. Each party sends a copy of the statement to the other. The conciliator may request further details, may ask to meet the parties, or communicate with the parties orally or in writing. Parties may even submit suggestions for the settlement of the dispute to the conciliator. When it appears to the conciliator that elements of settlement exist, he may draw up the terms of settlement and send it to the parties for their acceptance. If both the parties sign the settlement document, it shall be final and binding on both.

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.

COLLABORATIVE LAW: The attorneys try to facilitate process of resolution in accordance with the terms of the contract mentioned specifically. The agreements are prepared with the help attorneys. The resolution reached cannot be imposed on the parties by the attorneys.

-Chapter 07-

Alternate Dispute Resolution a success:

• Many institutions have been established for the purpose of Alternate Dispute Resolution implementation. Some of these institutions are IIAM , ICA and ICADR
•  Various measures can be taken to make this technique more efficient and easily approachable such as, Mediation and Conciliation centers can be opened exclusively for dispute resolution purposes, as has been already implemented by many State high courts. These centers can work effectively on weekends or an hour after normal working court hours.
•  To increase awareness seminars, workshops can be held and Alternate dispute Resolution can be made a compulsory subject for all law courses. Awareness camps will help to change the mindset of the people; thereby making it clear to them that litigation is a second priority for resolution purpose the very purpose can be reached.
• Arbitrators, Mediators, Conciliators and all those forming a part of this process must be provided with expert training to deal efficiently with any kind of problem.

Conclusion

Alternate Dispute Resolution is a need, both at the national and international front. Quality of justice suffers when there is a disproportionate 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. 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.

Alternate Dispute Resolution is rapidly developing at national and international level, offering simpler methods of resolving disputes. Increasing trend of ADR services can easily be inferred from the growth of “Arbitration clause” in majority of contracts. There has been a significant growth in number of law school courses, diplomas, seminars, etc. focusing on alternate dispute resolution and rationalizing its effectualness in processing wide range of dispute in society. 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.

Bibliography

ACTS

• The Constitution of India.
• The Arbitration and Conciliation Act, 1996.
• Civil Procedure Code, 1908.

BOOKS

• P.C.Rao & William Sheffield, Arbitration Dispute Resolution, Delhi: Universal Law, 1997.
• F.S. Mariman, Alternative Dispute Resolution in India, In Justice S.B. Malik and R.K. Mehra, Principles and Digest of new Arbitration and Conciliation law, 3rd ed.,Allahabad: University Book Agency,1999.
• , The arbitration and conciliation law of India, Published in 2000, Indian Council of Arbitration (New Delhi)

WEBSITES

1. http://www.hg.org/adr.html
2. http://www.adr.gov
3. http://www.manulawbooks.in/OnlineBook
4. www.manupatra.com
5. http://www.naavi.org/praveen_dalal/arbitration_may_14.htm
6. http://www.iclg.co.uk
7. http://goliath.ecnext.com/coms2//The-Arbitration-Law-Of-India.html

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