The alernative Dispute Resolution (ADR) will play a pivotal role in the coming years in not only delivering speedy justice but also offering permanent solution to their disputes.
Promoting ADR, the Punjab & Haryana High Court recently opened its first mediation and conciliation centre.
Judges and advocates will jointly run the centre. Mediators have been specially trained to play the role of a third party in order to bring the two parties in conflict to an acceptable conclusion.
Arbitrators and mediators have an important role in resolving disputes. Mediators act as neutrals to reconcile the parties differences before proceeding to arbitration or litigation. Arbitrators act as neutral third parties to hear the evidence and decide the case. Arbitration can be binding or non-binding.
WHAT IS ADR?
Alternative dispute resolution (ADR) includes dispute resolution processes and techniques that fall outside the government’s judicial process. The rising popularity of the ADR can be explained with the increasing caseload of traditional courts, the perception that ADR imposes fewer costs than litigation, a preference for confidentiality, and the desire of some parties to have greater control over the selection of the individual or individuals who will decide their dispute.
ADR is generally classified into five subtypes: negotiation, mediation, collaborative law, arbitration and conciliation.
The salient features of each type are as follows:
NEGOTIATION: In negotiation, participation is voluntary and there is no third party who facilitates the resolution process or imposes a resolution.
MEDIATION: In mediation, there is a third party, a mediator, who facilitates the resolution process but does not impose a resolution on the parties. In some countries, ADR is synonymous with what is generally referred to as mediation.
COLLABORATIVE LAW: In collaborative law or collaborative divorce, each party has an attorney who facilitates the resolution process within the specifically contracted terms. The parties reach agreement with support of the attorneys (who are trained in the process) and mutually agreed experts. No one imposes a resolution on the parties.
ARBITRATION: In arbitration, participation is typically voluntary and there is a third party who, as a private judge, imposes a resolution. Arbitrations often occur because parties to contracts agree that any future dispute concerning the agreement will be resolved by arbitration. In recent years, the enforceability of arbitration clauses, particularly in the context of consumer agreements (eg. credit card agreements), has drawn scrutiny from courts. Although parties may appeal arbitration outcomes to courts, such appeals face an exacting standard of review.
CONCILIATION: Conciliation is a process whereby the parties to a dispute (including future interest disputes) agree to utilise the services of a conciliator, who then meets with the parties separately in an attempt to resolve their differences. Conciliation differs from arbitration in that the conciliation process, in and of itself, has no legal standing, and the conciliator usually has no authority to seek evidence or call witnesses, usually writes no decision, and makes no award. Conciliation differs from mediation in that the main goal is to conciliate, most of the time by seeking concessions. In mediation, the mediator tries to guide the discussion in a way that optimises parties need, takes feelings into account and reframes representations.
But in order to make the ADR an effective tool for dispensation of justice, its success will depend immensely on the awareness created amongst the public. “A lot will depend on as to how the awareness about the ADR is created. For people, at present, litigation is the last retreat to bring an end to a dispute. Very few people are aware about the advantages of ADR,” opines Advocate Vikram Sheoran.