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Mar 10, 20226 min read

ADR And Its Components: Utility Perspective



Abstract: Well said, “Justice delayed means justice denied.” This quote has highlighted one of the major problems, which is the overburdening of pending cases in the court and due to this people are not able to access justice. This problem has given birth to ADR, alternative dispute resolution, it is an effective, flexible and accessible way to solve disputes amicably. Internationally, it has been widely accepted as a substitute to litigation because of its advantages over litigation. Additionally, it is currently an elder brother to the judiciary by removing the burden of huge numbers of cases from the shoulders of courts.

This article is written by Khushi Goel from Maharaja Agrasen Institute of Management Studies, IP University. It endeavours to highlight the history of ADR, the meaning with advantages and disadvantages that helps the reader to differentiate between the litigation system of court with alternative dispute resolution and its compounds. Further, emphasised on the types of ADR; arbitration, mediation, negotiation and conciliation. At last, this article contains a small part on Online dispute resolution which is also a future of the legal world.

Keywords: Mediation, Arbitration, Negotiation, litigation, court

Genesis/ Development of ADR

The force of alternative dispute resolution began in the united states of America to discover the options of the time consuming and highly-priced current legal system. The agreement of legal controversies out of the traditional legal system to settle the controversies. This was current in Indian villages, where the elderly most contributors of the village community helped in settling the disputes. Also, ADR gained immense significance during the Mughal regime. The Muslim laws were comprehensively composed in a commentary named Hedaya, which carry the provisions relating to arbitration. According to Hedaya, an arbitrator also known as hakam was to possess qualities of a Kazi-judge.

Meaning With Pros And Cons

Alternative dispute resolution is a new, modern and amicable means of solving disputes. It is predetermined as a substitute to dispute resolution such as conflict, litigation in the handling of situations.

The process of settling disputes without litigation by various methods like arbitration, mediation, negotiation and conciliation is called alternative dispute resolution. This term includes 3 words which mean, the word ‘alternative’ is a common English word that means something other than, also a state-sponsored mechanism. Another word ‘Dispute’ means conflict and the last word ‘resolution’ indicates the peaceful resolution of the dispute in a consensual sense. Therefore, in other words, alternative dispute resolution is a substitute method of helping people in resolving their disputes outside the courtroom, with the assistance of a neutral third party.

The advantage of ADR is that it does wonder to help in reducing the burden of cases on the court or litigation by providing a peaceful mechanism to resolve the disputes and a flexible mechanism. This mechanism is less time consuming which means it provides speedy justice as compared to litigation. Further, it is a confidential process that means there is no breach of privacy. It is a bitter truth that ADR is not unsusceptible from criticism. It is costly as the fee charged by a neutral party is very hefty but the judges in court do not charge. Further, the decisions in some components are not binding in nature, for instance, an arbitrator's settlement is sometimes viewed as a detriment because it may not always please the parties and courts also will decline to review it.

Hence, everything has its advantages and disadvantages, but currently, ADR is an urgent need to reduce the burden of cases from the shoulders of courts. As a result, it is a movement with a drive from enlarging the approach and attitude which is positive in nature, towards resolving a dispute.

COMPONENTS OF ADR

  1. Arbitration: it is a process where disagreement is submitted and the agreement of the parties is being discussed. Further, judges make a list of the disagreements and then decide the settlement. By arbitration, the parties go for a non-public or exclusive disagreement resolution procedure as a substitute for going to court.

  2. Mediation: Mediation is a process in which the neutral person, also known as a mediator and a neutral to the dispute, assists the disputed parties to find out a solution conditionally it should be acceptable to parties. The introductory purpose of the process is to allow the parties to settle their dispute with the help of negotiation and explore the options aided by a neutral third party. This is a non-binding process and a very flexible one.

  3. Conciliation: It is a procedure in which a 3rd party neutral person meets with the parties to a disagreement which may be resolved; a fairly unshaped system of disagreement resolution. Here the third party facilitates communication between parties in an attempt to help them settle their differences.

  4. Negotiation: it is a strategic discussion that resolves an issue in a way that both parties find respectable. In a concession, each party tries to convert the other to agree with his or her point of view. By negotiating, all involved parties try to avoid arguing but agree to reach some form of concession.

LITIGATION VS. ADR

Litigation is the old way to solve disputes and to get justice. In the world, it is widely accepted and used to take a dispute to a court of law whereas alternative dispute resolution is the modern way to solve disputes in an amicable manner that means parties have a chance of conserving their relationship. Litigation is a complex system as it has lots of formalities on the other hand ADR does not follow prescribed rules and regulations and that's why there are no formalities in alternative dispute resolution and help them to arrive at mutually agreeable decisions and also a flexible mechanism as it can be initiated at any time when the parties to dispute desire to do so. There is no confidentiality in litigation as the proceeding is conducted in an open court of law but in mediation, a type of ADR is the process of solving disputes in a private setting. The first one is able to conduct proceedings for criminal as well as civil cases but the last one only addresses the civil cases because of the less gravity of contentious issues between the parties. ADR mechanism provides speedy justice as compared to the litigation process. It is less time-consuming.

Future legal system: ADR

After analysing both the legal institutions, it is right to say that ADR is the future legal system because the judiciary system is becoming inefficient due to the burden of lots of cases on one legal system and this creates a need for another efficient institution that can produce desirable interest and be less time-consuming. And from here, alternative dispute resolution with its components came into view and solved this major problem by playing a significant role.

With the development of technology, ODR is also established under the ambit of ADR, which means that the use of technology accompanying ADR, alternative dispute resolution mechanisms is conducive to resolving disputes and identified as online dispute resolution. ODR is another branch of dispute resolution which employs technology to lubricate the resolution between parties for quick and easy redressal of disputes. This will be in a future world legal system to resolve disputes due to many benefits like flexibility, cost-effective or economically viable.

Conclusion

“I realised that the true fiction of a lawyer was to unite parties…A large part of my time during the 20 years of my practice as a lawyer was occupied with bringing out a private compromise of hundreds of cases. I lost nothing thereby- not even money, certainly not my soul.”

- Mahatma Gandhi

Courts are the traditional way to solve disputes. Additionally, it is a long as well as complex way and alternative dispute resolution is the modern way to solve disputes amicably and effectively. Further, ADR System’s flexibility is commendable as it empowers gatherings to scrutinise disputes and then come up with solutions that might or might not be approachable by the legislation or traditional courts. The ADR and its components have techniques to solve major problems by impassioning the overburdened judiciary. Because ADR currently is assisting like an elder brother to the judiciary by removing the burden of huge numbers of cases from the shoulders of courts. Hence, It is the future of the new legal world as it can work efficiently.

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