ALTERNATE DISPUTE RESOLUTION

This article is written by Anuj Sharma, Student, Department of Law (LLB 3 years), University of Jammu.

Keywords:

1. Definition and concept
2. Different types of Alternate Dispute Resolution Methods
3. Traditional Dispute Resolution Methods
4. Conclusion

Abstract:

Alternate Dispute Resolution (ADR) refers to the various methods used to resolve conflicts outside of traditional litigation. These methods are generally more cost-effective, time-efficient, and less adversarial than going to court. In this essay, we will explore different types of ADR methods, including negotiation, mediation, arbitration, conciliation, and collaborative law.

1. Negotiation:

Negotiation is the most basic form of ADR and involves the parties involved in a dispute discussing their differences and attempting to reach a mutually agreeable solution. This method can be done informally or with the assistance of legal counsel. Negotiation allows the parties to maintain control over the outcome and can be tailored to fit the specific needs of the dispute. However, negotiation may not be suitable for disputes where power imbalances exist or when emotions run high.

It is the process of setting the difference by face to face round-table talk between the representatives of employees and employers.

• Mediation:

Mediation is a voluntary and confidential process where an impartial third party, known as a mediator, facilitates communication between the disputing parties. In the case of failure of negotiation machinery to dissolve the disputes by the mutual discussion and understanding, a third party intervention to secure the settlement of labour dispute by way of mediation is often resorted to. The mediator helps the parties identify their interests, explore possible solutions, and ultimately reach a mutually satisfactory agreement. Mediation is less formal than litigation and allows the parties to maintain control over the outcome. It is particularly useful in resolving disputes involving families, communities, or workplace conflicts. Mediation is also often used in legal cases before going to court, as it can help parties find common ground and avoid the expense and uncertainty of litigation.

• Arbitration:

Arbitration is a more formal ADR method where a neutral third party, known as an arbitrator, hears evidence and arguments from both sides and makes a binding decision. The arbitrator’s decision is usually based on the evidence presented and relevant laws or contracts. Arbitration can be either voluntary or mandatory, depending on the circumstances. It is commonly used in commercial disputes, labor disputes, and international disputes. Arbitration offers a faster resolution compared to litigation and allows parties to choose an arbitrator with expertise in the subject matter of the dispute. However, the decision is binding, and there is limited opportunity for appeal.

There is two type of arbitration—

• Voluntarily arbitration
  • Compulsory arbitration

 1. Voluntarily arbitration: Voluntarily arbitration is a process in which disputing parties choose one or more arbitrator to hear their dispute and to render a final decision or award after a hearing. Voluntarily arbitration implies the two contending parties unable to compromise their differences by themselves or with the help of mediation or conciliator, agrees to submit the conflict/dispute to an impartial authority whose decision they are ready to accept.

2. Compulsory arbitration Compulsory arbitration is one way where the parties are required to accept the arbitration without any willingness on their parts.

•  Conciliation: 

Conciliation is a process similar to mediation, where a third party, known as a conciliator, assists the parties in resolving their dispute. The conciliator’s role is to facilitate communication, clarify misunderstandings, and propose possible solutions. However, unlike mediation, the conciliator may also provide advice or suggestions on how to resolve the dispute. Conciliation is often used in disputes involving public services, such as consumer complaints or workplace disputes. It offers a less formal and adversarial approach than arbitration or litigation but still allows the parties to maintain control over the outcome.

• Collaborative Law:

Collaborative law is an ADR method primarily used in family law disputes. It involves each party being represented by their own attorney but with a commitment to resolving the dispute through cooperation and negotiation rather than litigation. The attorneys work together to find creative solutions that meet the needs of both parties. Collaborative law encourages open communication, transparency, and a focus on long-term solutions rather than short-term wins. This method can be particularly beneficial when preserving relationships (such as co-parenting after divorce).

• Other methods:

In addition to these methods, there are other forms of ADR that can be utilized depending on the nature of the dispute. These include mini-trials, where a neutral advisor provides an evaluation of the case and helps the parties reach a settlement; summary jury trials, where a mock trial is conducted before a jury, and the parties use the feedback to negotiate a settlement; and hybrid processes that combine elements of different ADR methods to suit the specific needs of the dispute.

Traditional dispute resolution:

It has been a long adopted convention that when a dispute arises, the most convenient way to resolve it has been to go for litigation. This simply means that courts are approached by the parties and the decision of the courts are deemed to be binding upon all. The parties thus accept the supremacy of courts in such a scenario. This position of courts is also backed by the law which explicitly establishes soverinty of courts and authority of its judgements.

Whereas the Alternate dispute resolution means seek to reach a solution between the parties amicably, the traditional conflict resolution means focuses on legal aspects of the dispute.

Court-based litigation is typically most appropriate for disputes where:

• The issue is time-sensitive, requiring urgent court action
• The outcome needs to be legally binding
• One of the parties is unwilling to participate in an alternative form of dispute resolution[1]

Civil litigation

Civil litigation is the most traditional form of dispute resolution. It involves going to court to settle disputes or legal issues. This model has been incorporated into the indian legal system through adoption of English law. Thus, similar to the system in the United Kingdom, in our country the jurisdiction of different courts have been established very clearly by law. This may range from monetary jurisdiction, territorial jurisdiction, etc.

The civil litigation process typically involves hiring a civil litigation advocate or barrister who provides legal advice and legal services, files a civil claim, and works with the other party’s solicitor to reach a resolution.

Before the trial begins, there are a few routes that are open to the parties and can be adopted before or during the court tenure when the court is approached. These help in reaching out of court settlement and saves time, effort and money. These are:

Pre-litigation, which happens before court proceedings are issued.

Litigation, which is the stage where the court is involved. A trial is the final stage of this stage.

Post-litigation, which occurs only if one of the involved parties has an issue with the outcome of the case, and wants to appeal the court’s decision.

Conclusion:

In conclusion, alternate dispute resolution (ADR) offers a valuable and effective alternative to traditional litigation in resolving disputes. It provides parties with a more flexible and collaborative approach to resolving conflicts, allowing for quicker and less costly resolutions. ADR methods such as mediation and arbitration promote open communication, compromise, and creative problem-solving, resulting in mutually satisfactory outcomes. Additionally, ADR allows parties to maintain control over the process and outcome, fostering a sense of empowerment and satisfaction. While ADR may not be suitable for all disputes, its benefits make it a highly recommended option for individuals and businesses seeking efficient and amicable resolutions.

[1] https://online.lincoln.ac.uk/what-is-dispute-resolution/#:~:text=Traditional%20dispute%20resolution&text=It%20involves%20going%20to%20court,monetary%20value%20of%20the%20dispute.