ADR includes within its ambit all those amicable methods of dispute settlement without the intervention of the court. There is no universally accepted definition of the expression ADR. Some definitions of ADR exclude all processes whereby a binding decision is given by a third party. The Academy of Experts defined ADR as a process of resolving an issue ‘susceptible to normal legal process by agreement rather than by imposing a binding decision’. Brown and Marriott describe ADR as ‘a range of procedures that serve as alternatives to litigation through the courts for the resolution of disputes, generally involving the intercession and assistance of a neutral and impartial third party’. They suggest inter-party negotiation without a facilitator, which is not an ADR process. The term ADR normally would comprehend any form of dispute resolution other than court adjudication as part of justice established and administered by the state.
ADR procedures include arbitration, negotiation, mediation, conciliation, mini-trial or executive tribunal structured settlement conference, ‘med-arb’, and expert evaluation or non-binding appraisal. They place a premium on party involvement. The use of mediation, in particular, has greatly increased in the last decade, particularly following court led initiatives to impose it upon litigating parties in an effort to resolve disputes without resorting to a full trial. In the form of mediation, it may involve ‘shuttle diplomacy’, whereby each party is encouraged to put the issues of concern and his bottom line to the mediator in private. The mediator can then isolate the real area of the dispute and try to resolve it in the light of pragmatic consideration, such as face-saving and other business and human approaches. In such cases, the intermediary is more proactive and seeks to suggest the result. ADR may be provided for in the agreement between the parties, or it may take the form of an ad hoc procedure entered into after the dispute between them has arisen: the decision to attempt ADR may be a voluntary one by the parties, or it may be in effect forced upon them by the case management powers of the courts.
Whenever a person has a civil dispute with someone, he would go to a lawyer. In our country, the lawyer would advise him to file a case in a court of law for redressal of his grievance. If he receives a legal notice, the advice of the lawyer would be either not to respond or send a reply through him. But this is not the position in the other countries, such as the USA where a person going to a lawyer, is advised to go for negotiation with the other party. Both the parties, generally represented by lawyers, would discuss and try to resolve the dispute by negotiations and the success rate is very high.
Litigation through the courts and tribunals established by the State is one way of resolving the disputes. The courts and tribunals adjudicate and resolve the dispute through the adversarial method of dispute resolution. Litigation as a method of dispute resolution leads to a win-lose situation. Associated with this win-lose situation is the growth of animosity between the parties, which is not congenial for a peaceful society. One party wins and the other party is a loser in litigation, whereas, in ADR, we try to achieve a win-win situation for both the parties. There is no loser and both parties feel satisfied at the end of the day. If the ADR method is successful, it brings about a satisfactory solution to the dispute and the parties will not only be satisfied but the ill-will that would have existed between them will also end. ADR methods especially mediation and conciliation not only address the dispute, but they also address the emotions underlying the dispute. In fact, for ADR to be successful, first the emotions and ego existing between the parties will have to be addressed. Once the emotions and ego are effectively addressed, resolving the dispute becomes very easy. This requires the wisdom and skill of counselling on the part of the mediator or conciliator. Perhaps the most workable definition is to describe ADR as a method of resolving, or attempting to resolve, disputes without resort to the courts by procedures that are informal.
There is no single philosophy underpinning ADR. It has rather a number of different strands, sometimes, but not always, overlapping. Different ADR procedures are successfully used to preserve or enhance personal and business relationships that might otherwise be damaged by the adversarial process. ADR is not confined only to disputes involving relationships but used just as well for settling issues where there is no relationship between the parties. These methods are grouped together under the general heading of ADR. Usually, mediation and conciliation are seen as the first step in the settlement of disputes to be followed, if unsuccessful, by arbitration or litigation. It is nevertheless relevant to note that ADR is not a panacea. It is not suitable for resolving all disputes which form the subject matter of court litigation. For instance, it cannot be used to resolve disputes arising from relationships between the state and its citizens. Likewise, any ADR device cannot impose punishment for triable offences.
There is a comprehensive range of systems for resolving various types of disputes as alternatives to the traditional court litigation with the object of reducing the burden on the state courts and for achieving less expensive and speedier dispute resolution. The word ‘alternative’ used in ADR itself indicates the resolution of a dispute by a system alternative to court litigation. ADR proceedings are private and confidential. But they are without prejudice, in the sense that oral and written exchanges cannot be relied upon in any subsequent legal proceedings.
It may be helpful to view the ADR techniques in the context of the Dispute Resolution spectrum.
|DISPUTE RESOLUTION SPECTRUM|
|MOST FORMAL||COURT ADJUDICATION|
We can view the ADR spectrum graphically as extending from the least formal process on the top of the chart, pure negotiation, to the most formal process on the bottom, court adjudication. Pure negotiation, a process familiar to all advocates, is the only process in the spectrum in which the parties and counsel engage without the assistance of a neutral. Many times, however, it serves as an ancillary dispute resolution mechanism to other processes in the spectrum. In the next process, conciliation, the neutral’s goal is to assist in reducing tensions, clarifying issues, and getting the parties to communicate. In essence, it is the process of “getting the parties to the table” and inducing their active involvement in solving their problem. Moving down the chart, facilitation is the process in which neutral functions as a process expert to facilitate communication and to help design the process structure for resolving the dispute. Ordinarily, a facilitator deals only with procedures and does not become involved in the substance of the dispute. The most formal and final of the dispute resolution processes is, of course, court adjudication.
While India has been almost reluctantly adopting ADR as a legitimate justice delivery mechanism, the rest of the world, especially the developing world has adopted a number of ADR mechanisms.
The Authors of this article, Sanjeev Kumar is a Partner and Anshul Sehgal is a Managing Associate in the Litigation & Dispute Resolution Team at L&L Partners Law Offices, New Delhi. They can be reached out at [email protected] and [email protected]. The views expressed are personal.
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