Alternative Dispute Resolution (ADR) is a strategy for resolving disputes and disagreements between parties by reaching an amicable / peaceful settlement through negotiation and discussions. It is an attempt to establish an alternative to conventional dispute resolution. The ADR system provides assistance in resolving business and other issues where it is not possible to initiate any negotiation process or reach a mutually agreed solution.
In India, ADR is established on the basis of Article 14 (Equality before the law) and Article 21 (Right to life and personal freedom) under the Constitution of India. The Directive Principles of State Policy (DPSP) of Equal justice and free legal aid as enshrined in Article 39-A of the Indian Constitution may also be acquired by ADR.
Alternate Dispute Resolution is another solution to the formal and rigid legal system. It is another way to sue. It is because the Courts are burdened with millions of cases. ADR only offers an option instead of a trial. It is intended only for filling and not replacing the legal system. It can be involved in social, commercial, industrial, and family conflicts. It is very important in all types of commercial disputes and is considered to provide a quick solution in relation to business disputes with an international character. Even if the ADR process fails, it never wastes money and time because it helps those involved to see the other person’s point of view on the case and better understand the case. It is important to distinguish between alternative and binding dispute resolution. Among all the options available, negotiations, negotiations and conciliation are non-binding forms, and are subject to the consent of both parties to reach an agreement. ADR binding strategies produce a decision of an external company that both parties must follow even if they do not agree with the outcome as a judicial decision. Non-Dispute Resolution produces a third-party decision that the parties may reject and may appeal to a court of law.
BENEFITS OF ALTERNATE DISPUTE RESOLUTION: –
⦁ Single process- With ADR, the parties may agree to a single dispute resolution involving intellectual property protected in several different countries, thus avoiding the cost and complexity of multiple regional trials, as well as the risk of consistent consequences.
⦁ Party independence- Because of its private nature, ADR gives stakeholders the opportunity to control how their dispute is resolved rather than it would in court cases.
⦁ Neutrality- ADR may be neutral in the law, language and institutional culture of the parties, thus avoiding any local court benefit one of the parties may enjoy in the courts, where familiarity with applicable law and local procedures may provide significant strategic advantages.
⦁ Confidentiality- ADR procedures are confidential. Accordingly, the parties may agree to keep the case and any outcome confidential. This allows them to focus on the benefits of the conflict without having to worry about its impact on the community, and it may be especially important where commercial reputation and trade secrets are involved.
⦁ Finality of the Awards- Unlike court decisions, which can often be challenged in one or more cases, arbitral tribunals are seldom complied with second appeal.
⦁ Enforceability of Awards- The United Nations Convention for the Recognition and Enforcement of Foreign Arbitral Awards of 1958, known as the New York Convention / Geneva Convention, usually provides for the recognition of arbitration awards in accordance with local court decisions without a review of eligibility. This greatly facilitates the enforcement of prizes at borders.
DISADVATANGES OF ALTERNATE DISPUTE RESOLUTION: –
⦁ Can be used as a stopping strategy.
⦁ Affected parties are not obliged to proceed with negotiations or mediation.
⦁ It does not produce legal precedents.
⦁ The removal of the parties involved weakens the final agreement.
⦁ Stakeholders may have limited communication power. Groups do not have many words.
⦁ Looking at little or no power imbalances between the sides.
⦁ It will not protect the legal rights of organizations. The rights of the parties cannot be protected by alternate disputes.
RULES / REGULATIONS AND THEIR ROLES IN ADR-
- Code of Civil Procedure (CPC)- CPC- 1908 under section 89 (1) encourages cases to be resolved under Arbitration.
- Indian Arbitration Act, 1899- Influenced by the British Arbitration Act of 1899, this act extended the compass of arbitration in India by defining the term “submission”.
- Arbitration Protocol and Convention Act, 1937- The Geneva protocol on Arbitration Clauses 1923 and the Geneva Convention on the Execution of Foreign Arbitral Awards 1927 were used in India for this purpose. Its purpose was to get the law and the convention into effect in India.
- The Arbitration Act of 1940- Although the law only appertained to domestic arbitration, court intervention was needed throughout the arbitration process. The Act has made provision to deal with arbitration without court intervention and arbitration with court intervention in pending cases. This action is said to have failed the ADR objective as it required court intervention and did not guarantee a speedy and effective resolution of disputes.
- Arbitration and Conciliation Act, 1996- As established over, the Arbitration and Conciliation Act, 1996 is an important ongoing law based on the model law and rules of the UNCITRAL Arbitration Rules and was an attempt to make the Existing Arbitration Act (1940). The Law abolished all three former laws. Its main purpose was to make arbitration a cost-effective and quick way to resolve disputes. It includes both – domestic arbitration and international commercial arbitration.
- Online Dispute Resolution- A branch of dispute resolution that facilitates the resolution of disputes between parties using technology, is called the Online Dispute Resolution. It is often referred to as the Internet-equivalent ADR on the grounds that it not only uses the usual ADR procedures for Mediation, Arbitration and Conciliation but can also grow them to cover a wide range of disputes. The National Center for Technology and Dispute Resolution is the driving force of ADR.
- Legal Service Authority Act, 1987- Regulates Lok Adalat, a court of law in India.
RELATED CASE LAWS-
⦁ Booz Allen and Hamilton Inc v. SBI Home Finance Ltd. and Ors (2011)- The adjudication of certain sections of the trial is reserved by the Legislature specifically in public courts as a matter of public policy. Some orders of cases, although not explicitly reserved for sentencing by a public court (courts and tribunals), may be required to exclude private courts. Therefore, when the cause/dispute is not resolved, the court, during the hearing, will refuse to refer the parties to the settlement, under section 8 of the Act, even if the parties may agree on arbitration as a forum for arbitration. such conflicts. Well-known examples of unresolved disputes are:
(i) disputes relating to rights and liabilities arising or arising as a result of criminal proceedings;
(ii) marital disputes relating to divorce, legal separation, restitution of marital rights, custody of the child;
(iii) testamentary matters (the issuance of a management letter and compliance certificate); and
(iv) eviction or tenure matters governed by special laws where the lessor enjoys legal protection from eviction and only the said courts are empowered to administer or resolve disputes.
⦁ Oil and Natural Gas Corporation Ltd Complainant v. Defendant of SAW Pipes Ltd. (2003)- Arbitral Award – Exclusion – The term ‘Indian public policy’ – For a broader definition – Award may be set aside if it conflicts with the basic policy of Indian law, Indian interest, justice or morality or illegal ownership. if the prize violates strict legal provisions or the provisions of the Act or in contravention of contractual terms, it shall be legally binding, which is not prohibited under Section 34. However, such breach of procedure must be subject to copyright.
Alternative dispute resolution tools aim to replace courts, and give a more flexible, effective, and advisable process for parties in conflict. In the cases described over, it can be ascertained that when both or all parties decided to willingly enter an ADR process, this action on its own was formerly a step toward improving relationships between states. ADR often saves money and speeds settlement. In arbitration, parties play an important role in resolving their own disputes. This often results in creative solutions, longer-lasting issues, greater satisfaction, and improved relationships. There are numerous other ways to resolve disputes, such as med-arb, mini trial, summary jury trial etc. But arbitration, mediation and Lok Adalat’s etc. are the most extensively used ADR methods in India. Globally, ADR is slowly becoming a popular choice for groups, but India still relies heavily on cases. However, with the development of these ADR methods, and in an effort to improve access to justice, ADR is seen as a necessity. Legal recognition should be given to all ADR methods including discussions as they are practical and applicable, and may help to reduce the burden on the courts.
- Arbitration and Conciliation Act, 1996 BARE ACT.
If you are a lawyer or a law student who is looking for a job, then you can find details about the latest openings here.
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.
The copyright of this Article belongs exclusively to Ms. Aishwarya Sandeep. Reproduction of the same, without permission will amount to Copyright Infringement. Appropriate Legal Action under the Indian Laws will be taken.
If you would also like to contribute to my website, then do share your articles or poems at email@example.com