ADR AND ITS GROWTH

Introduction

Alternative dispute resolution is no doubt a speedy and cost-saving process, thanks to globalisation modernisation and industrialisation that there are a lot of business disputes in the past decade, in recent times ADR has helped to resolve these business disputes more than litigation. But there are even many questions to be answered such that, does ADR gives fair justice, is it bringing a revolution in the legal system and is ADR helpful to sustain the trust of people in the legal system. What are the features does ADR Has in resolving disputes which litigation doesn’t. And what makes ADR a more feasible mechanism in solving disputes the litigation. Will ADR be able to overcome the litigation mechanism of justice in recent times.

A lot of such questions are to be answered further and many facts are to be looked upon.

ADR and Litigation

ADR in litigation or both dispute resolution mechanisms under highly paired in education in recent times. Litigation is the process of preparing and presenting a case in court whereas alternative dispute resolution is a dispute resolution mechanism through mediation and arbitration process which can take place either independently of the court system during the course of the in-court litigation process.[1]Alternative dispute resolution has gained a lot of popularity in recent times because of its time and energy-saving method and even a lot of business disputes these days are sold by alternative dispute resolution rather than by litigation because arbitration is often regarded as a simplified version of dispute resolution, it includes fewer rules of evidence and procedure.  In arbitration, decisions are made by the arbitrators and binding on the parties. One of the reasons why dispute resolution is being chosen in a business dispute resolutions is that while mediation or arbitration both the parties are heard and settlement is made between both of them looking upon the interests of both the parties. One more big reason why alternative dispute resolution is been chosen in business resolution dispute is that many big companies don’t want to involved in the long judicial litigation process hence to prevent the image of their companies alternative dispute resolution is used, native dispute resolution is a confidential trial so any company going through alternative dispute resolution mechanism has confidentiality and not everything is released to the public in this way the images of many big companies are also prevented from downfall.

Is ADR helpful to sustain the trust of people in the legal system to deliver speedy justice?

the formal courts are already playing a Huge role in justice delivery for a very long time.

But with Time, there Is an increment in the number of cases and due to this the number of pending cases has been increased since the past times. However, it is Also experienced that litigation can be a lifelong process for a common man. Litigation is lengthy, costly and formal and the parties have no access over the decision or outcome, due to these issues justice is more often delayed and it’s a fundamental right of every citizen to have speedy justice. The need in today’s modern world where everything runs fast, of a mechanism with the demand of justice, equity and FairPlay, to speed up the disposal of cases and clear up the mounting arrears of cases.

Alternative dispute resolution has all the above-mentioned features which make it a more trustworthy and reliable source of justice in the present times. [2]

Cases such as AT & T mobility LLC v. Concepcion, 563 U.S. 333(2011)[3], Marmet Health care centre V. Brown,565 U.s.530 [4]and Rachal v. Reitz , 56 Tex. sup. J. 530, 403 S.W.3d 840 (Tex.2013) are some of the famous cases resolved through ADR.

“Justice delayed is justice denied” V. “Justice hurried is justice buried”

Justice delayed is justice denied” is a legal maxim meaning that if a legal remedy is available for a party that has suffered some injury, but is not forthcoming promptly, it is effectively the same as having no remedy at all. This principle is the basis for the right to a speedy trial and similar rights which are meant to expedite the legal system because it is unfair for the victim to have to sustain the injury with little hope for resolution. The phrase has become a slogan for legal reformers who view courts or governments as acting too slowly in resolving legal issues either because the existing system is too complex or overburdened, or because the issue or party in question lacks political favour[5]. Alternative dispute resolution Proved itself a solution for the tussle between justice delayed is justice denied versus Justice hurried is justice buried. Alternative dispute resolution is used to save Time so that justice could be so fast and Justice is not delayed. The decision made in alternative dispute resolution is in the interest of both the parties, while mediation or arbitration the points or problems of both the parties are heard and looked upon hence justice is not hurried in this case so we can say that alternative dispute resolution proved itself to be a solution for both.

ADR a revolutionary mechanism

Alternative dispute resolution is today commonly used in several fields which is commercial laws, employment, domestic relations, labour law, international private law, public disputes and many other areas.[6]

Alternative dispute resolution has been able to gain so much popularity and success because of its features that offer many advantages over litigation, they are usually cheaper, faster, more flexible and confidential. In the current scenario where cases in pending or allot alternative dispute resolution can be a boon for justice delivery.

ADR has helped in almost every area. Despite historic resistance to a divided by many popular parties in their advocates, India has gained widespread acceptance among the general public in the legal profession in recent years. ADR is suitable for multiparty disputes, lower costs, in many cases it is free when involving consumers, likelihood and speed of settlements, the ability of processes, parties control of processes, parties choice of form, practical solutions, a wide range of issues can be considered, shared future interest may be protected, confidentiality, risk management, generally no need of lawyers, can be a less confirmational alternative to the court system all these features make ADR a reliable source of dispute resolution than litigation.[7]

Growth of mediation centres in India and its impact on ADR mechanism

The use of mediation, as an Alternative Dispute Redressal (ADR) mechanism, dates back to centuries before the British came to India. Back then informal panchayats were used to resolve disputes between the parties where the respected elderlies of the villages or the Mahajans were appointed as mediators. To date, Panchas or Pancha Parmeshwars, as neutral third parties, are used to settle disputes informally between the erring individuals or groups, by some tribes in India. However, with the onset of British colonialism, mediation began to be recognized as a formal and legalized ADR mechanism.[8]

The development of mediation as an ADR mechanism can also be attributed to section 89 of the Civil Procedure Code(CPC), 1908 which was inserted by the CPC (Amendment) Act, 1999 with prospective effect from 1/7/2002. This particular development was due to the efforts of Hon’ble Mr Justice A M Ahmadi. Ahmadi, the then Chief Justice of India, had invited the Institute for the Study and Development of Legal System (ISDLS) to India for a national legal exchange programme between India and the USA. The ISDLS examined the problems of institutional backlogs in the Indian judicial system and suggested the ADR mechanisms and legislative and structural reforms of the laws relating to these mechanisms following which, new reforms were introduced in 2002 in the form of amendment of section 89 of the CPC. However, the amendment was challenged by a group of lawyers following which the Malimath Committee and the 129th Law Commission were constituted. In the light of the reports submitted by the committees, the Hon’ble Supreme Court in the case of Salem Advocates Bar Association vs. Union of India. made it mandatory for the courts to refer cases to the alternative forums if they were so pleased. This case is a landmark one in the development of mediation in India. [9] hence, the growth of mediation as an alternative dispute redressal mechanism has received significant importance over the years by enactment of various legislations and by the efforts of various judges of the Supreme Court.

Indian council of arbitration (ICA), International center for alternative dispute resolution (ICADR) are some of the Indian institutions dealing with ADR.

Conclusion

No doubt ADR has gained rapid popularity over the years and it has spread its feet in almost every area in dispute resolution especially business disputes. India above this Is we have deducted that ADR is a more reliable source of justice delivery than litigation because of its energy and cost-saving features in the modern time.

ADR is also helpful to sustain the trust of people in the legal system to deliver speedy justice, ADR is a balance between justice delayed is justice hurried as the interest of both the parties are fulfilled in a short period of time, no doubt India is bringing a revolution in the legal justice system And ADR can also Help in decreasing the burden of pending cases informal courts.

CREDITS: Mimansha Roy, B.A.LL.B., Lloyd law college


[1] chicago-kent college of law , litigation and alternative dispute resolution, http://www.kentlaw.iit.edu

[2] Nimisha agarwal , ADR: A boon to achieve speedy justice , October 7, 2019 , www.lawordo.com

[3] via westlaw

[4] The university of akron school of law , www.law.uakeon.libguides.com

[5] Diganthan Raj sehgal, justice delayed is justice denied , March 12, 2021, i pleaders , www.blog.ipleaders.in

[6] Di maria laura izzo , alternative dispute resolution revolution, www.cyberlaws.it

[7] www.Wikipedia.com

[8] www.viamediationcentre.org

[9] www.viamediationcentre.org

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