Pendency and Alternative Dispute Resolution

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Recently, a Supreme Court (SC) judge has outlined a three-pronged approach, with a special focus on Alternative Dispute Resolution (ADR), to reverse the nearly 4 crore pendency in courts across the country.

Three-pronged Approach

• Improve judicial infrastructure through the use of e-platforms and setting up of more courts.
• Settle disputes at the pre-litigation stage through counselling.
• Strengthen the existing Alternative Dispute Resolution (ADR) mechanism.

Alternative Dispute Resolution

• Generally, it uses a neutral third party who helps the parties to communicate, discuss the differences and resolve the dispute.
• It offers to resolve all types of matters related to civil disputes, as explicitly provided by the law.
• It is capable of providing a substitute for the conventional methods of resolving disputes.
• Important Provisions Related To ADR
  • Section 89 of the Civil Procedure Code, 1908: Provides that opportunity to the people, if it appears to court there exist elements of settlement outside the court then the court formulate the terms of the possible settlement and refer the same for ADRs.
  • Acts dealing with ADR
    • Legal Services Authority Act, 1987 (established Lok Adalat System)
    • Arbitration and Conciliation Act, 1996

Various Modes of ADR

• Arbitration
  • The dispute is submitted to an arbitral tribunal which makes a decision on the dispute that is mostly binding on the parties.
  • It is less formal than a trial and rules of evidence are often relaxed.
  • Generally, there is no right to appeal an arbitrator’s decision.
  • Except for some interim measures, there is very less scope for judicial intervention in the arbitration process.
• Mediation
  • An impartial person called a “Mediator” helps the parties try to reach a mutually acceptable resolution of the dispute.
  • He/she does not decide the dispute but helps the parties communicate so they can try to settle the dispute themselves.
  • It leaves control of the outcome with the parties.
• Conciliation
  • It is a non-binding procedure in which an impartial third party, the conciliator, assists the parties in a dispute in reaching a mutually satisfactory agreed settlement of the dispute.
  • It is a less formal form of arbitration.
  • The parties are free to accept or reject the recommendations but if both parties accept the settlement document drawn by the conciliator, it shall be final and binding on both.

Need and Significance

• The inefficiency of the judiciary to deal with pending cases and clogging with long unsettled cases.
• Even after setting up fast track courts, the number of pending cases are still piling up.
• Delays in litigation should be mended by referring disputes to ADR for settlement, which would prove to be an effective counter to reduce pendency.

• These provide scientifically developed techniques to the Indian judiciary which helps in reducing the burden on the courts.
• Its motive is to provide social-economic and political justice and maintain integrity in the society enshrined in the preamble.
• ADR is founded in such Fundamental Rights, Article 14 and 21 which deal with Equality before Law and Right to Life and Personal Liberty respectively.
• It also strives to achieve equal justice and free legal aid provided under Article 39-A relating to the Directive Principle of State Policy (DPSP).
• Also, the Malimath Committee Report (1989-90) underlined the need for ADR mechanisms as a viable alternative to conventional court litigation.

Advantages of ADR

• Less Time Consuming: People can resolve their dispute in a short period as compared to courts.
• Cost-effective: ADR saves all that money, which one spends if undergoing the litigation process.
• Less-Technical: It is free from technicalities of courts and informal ways are applied in resolving the dispute.
• No Fear of Court: People are free to express themselves without any fear of court of law. They can reveal the true facts without disclosing them to any court.
• Efficient Restoration: There are always chances of restoring the relationship back as parties discuss their issues together on the same platform.
• Prevent More Conflict: ADR prevents further conflict and maintains a good relationship between the parties and also preserves the best interest of the parties.

Limitations

• No Appeals: There is less or no scope of appeal in awards. Whenever there is a problem with the award, there would be no scope of appeal or correction.
• Varied Guidelines: It is difficult to choose among various guidelines and multiple institutions providing the facility of arbitration.
• Different Statutes: Due to different statutes for domestic and international arbitration, it is difficult to ascertain the applicability of the laws relating to international arbitration.
• Cross-cultural Language Barrier: Due to discrepancy in the language and culture of the two regions, it becomes difficult to bridge the gap and come to a unified solution.
• Unfamiliarity & lack of awareness: Most people still prefer the conventional method of going to courts and are also not informed about these options and the methodology.

Source: TH