Alternative Dispute Resolution System: An alternative forum for interminable, time-consuming, complex, and expensive Court Procedures
INTRODUCTION:
The main focus of the Constitution of India is to provide protection of Life and Personal Liberty, and in order to achieve this aim, our Indian Constitution provides for a structured Combination of Courts. The Court system of India comprises the Supreme Court of India which is at the apex of the entire Judiciary System, with the High Courts for each State or a group of states, accompanied by a Hierarchy of Subordinate Courts in the district, municipal, and village levels. In India, Justice is delivered through these Courts of Law outlined by the Indian Constitution to administer the functioning of the laws within the country.
These Courts have a precise and acclaimed structure for settling disputes. Having formal rules for settlement of disputes and decisions being binding on the parties, the system is highly technical and formal which does not always lead to acceptable results. Moreover, it is not always a satisfying process for the parties involved as going to court can be a costly and time-consuming procedure. These are the reasons due to which parties look for an alternate way of resolving their disputes.
These interminable, time-consuming, complex, and expensive court procedures have urged the Judiciary to search for an alternative forum, which is less formal, more effective, and speedy for the resolution of disputes called the Alternative Dispute Resolution System (hereinafter referred to as “ADR” System). As the name suggests ADR provides a mechanism substitute to the Conventional methods of resolving disputes which helps in reducing the burden of litigation on courts and delivers a satisfying experience to the parties involved in the dispute. Its diverse methods help the parties to resolve their disputes on their own terms cheaply and expeditiously.
1. THE LEGAL SYSTEM OF THE WORLD:
Whenever a matter is referred to the court, the process of adjudication takes place. However, the different methods of adjudication adopted wholly depend on the legal system prevailing in that country. There are mainly two broad models of the entire legal system in any country that help in adjudicating matters, these are the Adversarial model and the Inquisitorial model. Both systems aim at dispensing justice, but they differ in their techniques of adjudication and justice delivery processes. Therefore it becomes very important to understand the classification, meaning, and differences between these two systems.
2. ADVERSARIAL LEGAL SYSTEM:
The adversary system is referred to as a system that is fundamental to the court system because it is followed by England, Australia, and within the other British Dominions and colonies including India. This is the system that is generally adopted in common law countries. The adversarial system is a system where two parties’ positions are represented before an unbiased judge or a jury who effort to determine the truth behind the case. The parties are assisted by their lawyers who take a proactive role in delivering justice to the litigants. During the technique accused is presumed to be innocent and therefore the burden is on the prosecution to prove beyond all reasonable doubt and if there is any doubt, the advantage of doubt goes in favour of the accused. The accused also possesses the right to silence and cannot be compelled to reply. The right is guaranteed by the Constitution of India within the sort of fundamental right[1] and also a universally recognized right of the accused[2].
The lawyers collect evidence and even participate in cross-examination and scrutiny of evidence presented by the other disputing party. Thus, a sense of rivalry is brought by the lawyers of both sides in a particular case as to win the case in their favour, lawyers seek and present the best pieces of evidence supporting their client before the courts. The role of the judge/ decision-maker in this system is very limited as to a great extent they decide the case based on pieces of evidence and facts put forth by both parties. Their role and position is rather passive as the judge decides the claims based solely on the evidence and arguments presented by the parties and their lawyers. Hence, the judge decides the case as an observer and decides the case as an observer and decides the case as per the conformity and efficacy of the arguments presented.[3]
3. INQUISITORIAL LEGAL SYSTEM:
The inquisitorial model basically relates to the Romano Germanic System of Law, it is also referred to as the civil law system or continental law system. The inquisitorial system emerged in France and other European countries like Germany, New Zealand, Italy and Austria. In an inquisitorial legal system, the judge/ decision maker takes a centre stage in dispensing justice. The judge plays the role of discovering the truth and every evidence that either proves the innocence or guilt of the accused. The role of judge/ decision maker is active as he/she determines the facts and issues in dispute. The judge also decides the manner in which the evidence must be presented before the court. The judge evaluates the evidences presented before him/ her and decides upon the legal claims. Therefore, this model of adjudication is also known as the interventionist/investigative model.
The inquisitorial system is established on the presumption that truth can be discovered through an investigative procedure and therefore the state is best equipped to carry out such investigation. The judge has unlimited power to get and evaluate evidence. It is the judge who calls and examines the evidence and it is the lawyers who are there largely to make sure that the proceedings are fair. The essential idea of an inquisitorial proceeding is that the judge himself must investigate a complaint. The judge plays an active role and the court dominates proceedings and actively searches for the truth[4]. The main feature of this technique is that the accused is presumed to be innocent and it is the responsibility of the judge to determine the truth.
4. LEGAL SYSTEM IN INDIA:
India being a common law country adopted the adversarial system of criminal justice. India adopted the adversarial system from its colonial masters, the British. The reason why India inherited this legal system was its economical unsound position in the post-colonial era. Furthermore, with a gradual increase in population and the adversarial system’s speedy delivery of justice, it was most suitable for India to adopt an adversarial system. Also, India is a firm believer of truth, non-violence, and ahimsa. So, due to philosophical reasons also India adopted this system as it is in accordance with the traditional ethos of our culture where speaking of truth is always encouraged and seen as a viable option by giving a chance to the offender to admit the offense when he was wrong and seek mercy for the wrong deeds rather than to shy away from it leading to a reduced term of the sentence in one way or the other.
However, there is a greater lacuna in this system of criminal justice as, under the said model, there is no duty of the court to ascertain the truth. Since the judge is merely an umpire and is bounded by rules, he/she is unable to be an active participant in the trial he/she is only concerned with the proof that each side presents to substantiate its argument and not the truth itself as it is believed that the truth emerges from this contest between the two parties. Also, since the adversarial system in India is based on the ‘innocence of the accused’ the burden of proof falls on the prosecution. This further undermines the efficacy of the Criminal Justice System as the lawyers on both sides can manipulate their versions of the truth and the neutral judge at the end will give the judgment based on the evidence presented and in such a scenario if the accused was actually the offender but was not proved guilty on the bases of facts and evidence then this paves a way for a loss of faith in the system itself.
Moreover, the cost of the justice system falls upon the parties, and this gives birth to in-built discrimination amongst the litigants as the parties with better resources are able to access justice by hiring competent lawyers and presenting sophisticated evidence which may not be immediately available for parties that lack these resources. Accessibility and affordability to justice are important challenges for the adversarial system of dispute resolution. Furthermore, the role of lawyers and the procedural formalities, e.g. cross-examination may prolong the trial and lead to delays in several matters.
The former President of India, Dr. R. Venkataraman also made the same observation about the present system [5]:
“The Adversarial System is the opposite of our ancient ethos. In panchayat justice, they were seeking the truth, while in the adversarial procedure, the Judge does not seek the truth, but only decides whether the charge has been proved by the prosecution. The Judge is not concerned with the truth; he is only concerned with the proof. Those who know that the acquitted accused was in fact the offender, lose faith in the system”.
Hence it is an acknowledged fact that the present Judicial System is extremely expensive and delaying as the parties have to wait for Justice for years. This lengthy and expensive process of litigation has reduced the faith of common people in the Judicial Systems being followed by the Courts. These weaknesses of the judicial system have given birth to Alternative Remedies for the disposition of disputes. Alternative remedies provide cheap and speedy Justice and that is the reason that the ADR mechanism is preferred by the disputing parties for the resolution of their disputes.
5. ALTERNATIVE DISPUTE RESOLUTION (ADR) IN ANCIENT INDIA:
The alternative Dispute Resolution (ADR) system refers to the use of non-adversarial techniques for adjudication of legal disputes. India has a long history of the settlement of disputes outside the formal justice delivery system. The concept of parties settling disputes outside of the Court Systems through a person chosen by them was well known in ancient India. The history of ADR in India pre-dates the modern adversarial model of the Indian Judiciary.
The modern Indian Judiciary was introduced with the advent of the British colonial era, as the English courts and the English legal system influenced the practice of Indian Courts, advocates, and judges as before the kings came to resolve the disputes between people, such disputes were resolved peacefully by panchayats or the elderly people. Hence there is no point in ensuring that the Alternative Dispute Resolution System is not a new experience for the people of this country, it has been prevalent in India since time immemorial. The laws and practices of resolving personal and transactional economic conflicts without resorting to the courts can be traced back to ancient India.
For long back countries over the world are using non-judicial indigenous methods to resolve conflicts. What is new is the voluminous promotion and propagation of ADR Models, wider use of court-connected ADR, and the increasing use of ADR as a tool to realize goals broader than just the settlement of specific disputes. ‘Legal history indicates that down the ages man has been experimenting with procedures for making it easy, cheap, unfailing, and convenient to obtain Justice’ [6].
Since Vedic Times India has used arbitration or mediation as an alternative to the local court for resolving disputes. The Bhradarnayaka Upanishad is the earliest known text, in which several sorts of arbitral bodies are mentioned which were the specialized tribunals such as Kula (for disputes of family, community, tribe, castes, races), Shreni (for internal disputes in business, a corporation of artisans) and Puga (for the association of traders/ commerce branches). In these institutions, interest-based negotiations dominated with a neutral third party seeking to identify the underlying needs and concerns of the parties in dispute. Similarly, ‘People’s courts’ or Panchayat’ continued to be at the centre of dispute resolution in villages. These traditional institutions worked as the main means of dispute resolution, not as an alternative.
The ancient system of dispute resolution made a considerable contribution, in reaching the resolution of disputes relating to family, social groups, and also minor disputes relating to trade and property. Village-level institutions played the leading role where disputes were resolved by elders comprising the council of the village [7], which was an informal way of mediation, hence, in earlier days disputes hardly reached courts. Decisions given by the elderly council were respected by all. But subsequently, boom accompanied bane, the very system lost its importance due to the intervention of political and communal elements. With the advent of British rule, the system of dispute resolution was totally changed and a new formal, adversary system of dispute resolution was originated. The ADR system as is understood in the present scenario is the result of the shortcomings of that formal judicial system introduced by Britishers. Hence we can say that ADR was prevalent in India prior to the British Raj, however, it lost its sanctity after the Britishers introduced the Adversary system of settling disputes, which again brought the ADR system into light to avoid certain shortcomings in the legal system. In the present era, many new forms of ADR techniques have developed to avoid heavy costs, delays, and cumbersome procedures of the formal courts.
6. VARIOUS ADR MECHANISMS IN INDIA:
The ADR mechanisms can be broadly divided into two categories. The first one is adjudicatory and the second one is non-adjudicatory. The adjudicatory method is one where the dispute is referred by the parties to an unbiased third person who hears both the parties and resolves the disputes and this method is known as Arbitration. The non-adjudicatory approach is where the third party does not decide the matter but acts as facilitator/ mediator in resolving the disputes and these mechanisms are Negotiation, Mediation, Conciliation and judicial settlements (like Lok Adalats).
Source: Adapted from New York State Unified Court System, http://www.nycourts.gov/ip/adr/images/continuum2.jpg.
Adudicatory Methods
Arbitration:
Arbitration refers to a process where the parties to the dispute resolve their disputes privately outside the courts but nevertheless results in a final and legally binding decision similar to a court judgment. In this mechanism, parties can refer their dispute to an unbiased and neutral person called the Arbitrator who after recording the evidence resolves the dispute in a judicial manner. Arbitration offers advantages that cannot be provided by litigation in courts. In many cases, a big advantage is that the Arbitrator or Arbitral Tribunal is an expert in the field of the dispute so the proceedings can be conducted without the intervention of lawyers or any other representative in an expeditious manner.
Non-Adjudicatory Methods
1. Negotiation:
It is another form of ADR for resolving disputes. It is the type of ADR system that is opted first to resolve a dispute. In negotiation, there is no impartial third party to assist the parties in their negotiation, so the parties themselves cooperate and seek a solution that is beneficial to both sides. The main advantage of this form of dispute settlement is that it allows the parties themselves to control the process and the solution.
2. Conciliation:
Conciliation is the process in which a third party assists the parties to resolve their dispute by agreement. A civil court may also refer to both parties to the dispute to a conciliator. Conciliation is a compromise settlement between the parties to reach a settlement with the assistance of a Conciliator. The parties however, are not obliged or are not bound by the conciliation, in the sense that negotiations can be carried out until the parties arrive at a mutually pleasing settlement.
3. Mediation:
Mediation is a method of ADR in which parties appoint a neutral third party who facilitates the mediation process in-order to assist the parties in achieving an acceptable, voluntary agreement. Mediation is premised on the voluntary will of the parties and is a flexible and informal technique of dispute resolution. Mediation is more formal than negotiation but less formal than arbitration or litigation. Unlike litigation and similar to arbitration, mediation is relatively inexpensive, fast, and confidential. Further, mediation and arbitration differ on the grounds of the nature of an award rendered. The outcome of mediation does not have similar binding like an arbitral award. However, though non-binding, these resolution agreements may be incorporated into a legally binding contract, which is binding on the parties who executes the contract.
4. Lok Adalats:
‘Lok Adalat’ is yet another form of ADR created as per the requirements of people in particular areas. Camps of Lok Adalats were initially started at Gujrat in 1982 and now they have been extended to all over India. The main purpose of the establishment of Lok Adalats is to diminish the heavy burden of the pending cases in the courts which were of petty nature. These forums have assumed statutory recognition under the Legal Services Authority Act, 1987. The institution of a Lok Adalat in India, as the very name suggests, means, people’s Court where “Lok” stands for people and the term “Adalat” means court. India has a long tradition and history of such methods being practiced in society at the grassroots level in the form of village Panchayats which were used to resolve disputes through arbitration.
5. SIGNIFICANCE OF ADR:
Alternative Dispute resolution system refers to an array of methods for solving legal disputes without approaching the court system. The court’s inability to address the emotional aspects of conflict may be a reason why there has been a growing view that litigation was meant to become the last resort for parties seeking a dispute resolution. With the steep growth in the number of laws and the number of cases, the court system is under great pressure, in order to reduce the heavy demand for court time, efforts are always in motion to resolve the disputes by way of ADR systems in the country before going to the time-consuming court procedures.
The legal system of delivering justice in the country has come under great pressure because of many reasons, one of being them is the huge pendency of cases in courts resulting to delay in justice delivery ultimately leading to the loss of the common man’s belief in the Adversary judicial system of the country. A tremendous increase in the number of cases in the Indian courts with a very low rate of resolving disputes for a variety of reasons has underlined the need for alternative dispute resolution methods.
It is in this context, that a resolution was adopted by the Chief Ministers and the Chief Justices of States in a Conference held in New Delhi on 4th December 1993 under the Chairmanship of the then Prime Minister of India and presided over by the Chief Justice of India.
It reads as: “ The Chief Ministers and Chief Justices were of the opinion that Courts were not in a position to bear the entire burden of the justice system and that a number of disputes lent themselves to resolution by alternative modes such as arbitration, mediation, and negotiation. They emphasized the desirability of disputants taking advantage of alternative dispute resolution which provided procedural flexibility, saved valuable time and money, and avoided the stress of a conventional trial”.
“Justice, it is said, is too serious a matter to be left to the courts alone.” This statement made by the Former Chief Justice of India Mr. Venkatachalaih is the most perfect one when it comes to understanding the importance of the ADR System in India as the one enables the justice delivery system to be more effective and efficient by encouraging amicable resolution of disputes. Given the end number of limitations in the traditional system of dispute resolution, new approaches for dispute resolution in lieu of litigation have become essential as now it is the need of the hour to have a fast, reliable, cost-efficient, and a people’s friendly method of Dispute resolution.
WHY ALTERNATIVE DISPUTE RESOLUTION SYSTEM?
“The courts of this country should not be the places where the resolution of disputes begins. They should be the places where the disputes end after alternative methods of resolve g disputes have been considered and tried.”
-Justice Sandra Day O’ Connor
Whether it is the ADR method or the Legal Judiciary System of resolution of disputes, both aims at delivering Justice to the people of the country, however, ADR offers the same in an amicable, cost-effective, and time-bound manner which is the reason why middle-class people prefer ADR system of dispute resolution as this forum settles the disputes in such a manner that there is no change in the mutual relationships of the parties remain before and after the initiation of dispute. Here, the proceedings are informal without any procedural technicalities as the disputes are settled by an unbiased third party who is appointed by the disputing parties themselves according to their own preferences considering the expertise and experience of the person in resolving similar kinds of disputes.
There is a need for greater use of alternative Dispute Resolution to avoid the costs, delays, and cumbersome procedures of the formal courts. The following list indicates some advantages of using certain Dispute Resolution Processes:
- Flexibility:
ADR processes are usually more flexible than the court process as there is much more room for creativity when you resolve your dispute yourself or with the help of a third party. As parties can work together to arrive at a solution that meets the needs of all parties.
- Lower costs and less time-consuming procedures:
The dispute resolution system saves both time and money. They are generally faster and less complex than proceedings through the court system resulting in savings in both legal fees and court costs.
- Prevention of further Conflicts:
Disputes often involve parties who have a working or family relationship and will need to continue to live or work together after the dispute is resolved. These Dispute Resolution methods encourage people to work together at resolving the disagreement which often results in improved relationships as parties discuss their issues together on the same platform.
- Personal Satisfaction:
It is the general tendency that people are more likely to be satisfied with both the process and outcome when they chose and have control over both the DR process and the outcome and played a more active role in resolving their dispute and designing a solution that is best for them.
- Free from technicalities of courts:
Informal ways are applied in resolving disputes in ADR. People are free to express themselves without any fear of a court of law and can reveal the true facts without disclosing them to any court.
WHEN SHOULD ADR BE USED?
“Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often the real loser- in fees, expenses, and waste of time, as a peace maker the lawyer has a superior opportunity of being a good man. There will still be business enough.”
– Abraham Lincoln
A person must know that by wasting the time of courts the expense of the courts goes up. These expenses are met by the Government of India from the taxes which are paid by the citizens of the country. The only thing is that we have to have communication with an open mind and try to avoid approaching the courts.
ADR is typically cheaper and faster than entering into litigation and resorting to the courts. As long as communication has not irretrievably broken down between the parties in dispute, it should be considered as a more efficient method of achieving an outcome. It can be used when there is very less need for going into the depth of the procedures being more informal and less technical. It is also helpful in terms of maintaining a degree of privacy compared to the more public nature of court proceedings. One of the main reasons why ADR is an increasingly attractive option for businesses is that it enables matters to be kept confidential which preserves the reputation of the individuals or businesses involved. Moreover, there are a large number of illiterate and poor people in India, who cannot afford the lengthy, technical and expensive system of courts, and Alternative dispute resolution (ADR) could be a boom for these people.
However, if the communication is entirely broken down then it may be necessary to approach the conventional route of litigation. Also when there is an imbalance of power (eg if there is a dispute between a sole trader and a big multinational company) ADR may prove to be disadvantageous for an individual, so this is an issue that should be taken into account.
CONCLUSION:
Alternative Dispute Resolution System (ADR) is not a replacement of litigation, rather it would be used to make our traditional court system work more effectively and efficiently. Although ADR systems are essential and great attention and focus must go towards them to make them successful, it is necessary that apart from many other factors, improvement in the functioning of the courts should be brought first. Thereafter alternative dispute resolution be encouraged, but confined to matters where it is more suitable/ appropriate as compared to the ‘efficient and proper’ court procedures, it should not be merely regarded as an escape from the inability of the courts to dispense justice in time.
Further, pressing for ADR systems without first resolving the problem of delays before the courts are only driving people to ADR out of helplessness and giving them a feeling that: it takes so long for the court to decide and the cost of attending all the hearings is so much that it is as good as justice denied. So whatever little ADR has to offer, we might as well accept, and more than that we cannot expect. Encouraging the parties to simply go to the ADR system because the courts are not able to decide the cases in a reasonable time is absolutely wrong as ADR is only one alternative, not the method of choice.
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