Any partnership or organization is bound to have disagreements. Disputes can be settled by litigation (i.e., in a court of law) or through an ADR mechanism (alternative dispute resolution). ADR refers to processes and techniques that allow disputing parties to reach an agreement without resorting to litigation. It is a collective term for the various methods through which parties might resolve disagreements with the assistance of a third party. In recent years, ADR has garnered significant acceptability among the general public and the legal profession. The increased popularity of ADR Mechanisms is due to lower costs than litigation, a preference for confidentiality, and the desire of some parties to have more control over the people or individuals who will settle their dispute.
The Indian court system is one of the oldest in the world, and there are numerous ongoing and long-unresolved cases. ADR equips the Indian judiciary with scientifically proven tools that serve to reduce the burden on the courts. Arbitration, Conciliation, Mediation, and Negotiation are the different types of Alternative Dispute Resolution.
The definition of Arbitration in section 2(1)(a) is stated as – ‘Arbitration means an any arbitration whether or not administered by a permanent arbitral institution.’ It is a procedure in which the dispute is submitted to an arbitral tribunal which makes a decision which is known as an “award” on the dispute that is binding on the parties. Sections 312 to 325 of the Code of Civil Procedure, 1859, dealt with arbitration in suits, whereas sections 326 and 327 permitted for arbitration without judicial action. Section 89 of the Code of Civil Procedure (1908) mandates that cases be encouraged to seek ADR.
Mediation is a procedure in which a mediator, an impartial third party, works with the parties to reach an agreement that is acceptable to all of them. The main goal is to give the parties an opportunity to negotiate, communicate, and explore ideas with the help of a neutral third party in order to assess whether or not a settlement is achievable. The concept of mediation is not new to the Indian legal system, as it has existed in many forms. This can be seen in the Village Panchayat and Nyaya Panchayat. Mediation is not well-liked in India. One of the key reasons is that mediation is not a formal procedure that can be enforced in a court of law.
While conciliation is a type of arbitration, it is less formal. It is the process of enabling a friendly resolution between the parties to a disagreement by having a conciliator meet with each party separately to discuss the dispute. The Arbitration and Conciliation Act of 1996 states that “the party initiating conciliation shall send to the other party a written invitation to conciliate under this Part, briefly identifying the subject of dispute.” Conciliation proceedings will begin if the other party accepts the invitation to conciliate in writing. The conciliator will assist the parties in reaching an amicable settlement of their dispute in an objective and impartial manner. At any point during the conciliation process, the conciliator may make ideas for resolving the disagreement.
The preeminent mode of dispute settlement is negotiation-communication for the purpose of persuasion. It offers the advantage of allowing the parties to control the process and the solution directly, as opposed to processes involving mutual third parties. The essentials are: A) It is a communication process.
B) It is a conflict resolution procedure.
C) It is a purely voluntary activity.
D) The procedure is non-binding.
E) The outcome and method are under the authority of the parties.
Negotiation does not have any legal status in India. Self-counseling between the parties to resolve their conflict is referred to as negotiation. Negotiation is a fluid process with no set of rules but a recognizable pattern.
Men convince themselves that there is no such thing as justice since it is not carried out quickly. Arrears produce delays, and delays mean that justice is not truly accessible to the common man. With the introduction of Alternative Dispute Resolution, people now have a new way to resolve their disagreements. There is a pressing need for ADR mechanisms to provide access to justice. The ADR movement must be pushed ahead at a faster pace. The trend lately has been to move away from litigation and toward ADR. It’s a fairly realistic notion that, if applied, could cut civil court workloads in half.
I have always been against Glorifying Over Work and therefore, in the year 2021, I have decided to launch this campaign “Balancing Life”and talk about this wrong practice, that we have been following since last few years. I will be talking to and interviewing around 1 lakh people in the coming 2021 and publish their interview regarding their opinion on glamourising Over Work.
If you are interested in participating in the same, do let me know.
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