This article is written by Fayza Khan in her 5th year of BA.LL.B. from Mahatma Jyotiba Phule Rohilkhand University , Bareilly , during her internship at LeDroit India, about the concept of Alternative Dispute Resolution v. Traditional Litigation .
Keywords
Traditional Litigation , Disputes, Confidentiality, Resolution mechanism , Mediation, Conciliation, Negotiation, Arbitration.
Abstract
In today’s fast paced world where everyone is in a hurry , lengthy court proceedings often drain pockets, strain relationships and delay justice. Alternative Dispute Resolution (ADR) steps in as a game changing approach, offering quicker, flexible and more confidential ways to settle disagreement. This article compares Alternative Dispute Resolution with the traditional Litigation system laying emphasis on their differences, advantages and disadvantages . By highlighting the strengths and weaknesses of each , this article aims at guiding individuals, businesses and policymakers in opting the most efficient and fair path towards dispute resolution.
Content
- Introduction
- Alternative Dispute Resolution
- Types of Alternative Dispute Resolution
- Perks of ADR
- Limitations of ADR
- Traditional Litigation
- Perks of Litigation
- Limitations of litigation
- Comparative Analysis of Traditional Litigation and Alternative Dispute Resolution
- Conclusion
- Reference
Introduction
In the grand theatre of justice, two characters take the stage . litigation is the experienced practitioner – dressed in tradition, armed with statutes and ready to argue to the last objection . Meanwhile Alternative dispute resolution is the friendly newcomer – dressed in comfort and promising quick resolution with the courtroom drama. Their methods are worlds apart and their rivalry is fierce . The public is left wondering in the quest for justice , who deserves the spotlight.
It is well said that justice delayed is justice denied . For faster and efficient delivery of justice , people often choose alternative dispute resolution methods. Traditionally , litigation is considered as the primary mechanism for conducting court proceedings. Litigation is the oldest method believed to serve the ends of justice . However, in recent decades, people are inclining more towards the quicker and easier alternative dispute resolution methods such as mediation , arbitration , negotiation and conciliation . These methods have gained prominence as efficient , flexible and less formal alternatives.
Litigation provides structured outcomes , governed by strict procedural rules , bound by precedents and backed by the authority of the state. Often criticised for being expensive , time consuming and adverse in nature. To battle these challenges alternative dispute resolution (ADR) methods have emerged as less confrontational options. These Alternative Dispute Resolution methods promote confidentiality and often facilitate faster settlements while preserving relationships. If we are to compare litigation with ADR , the comparison of a sprint to a marathon fits perfectly , as litigation is a marathon – long , exhausting and bound by rules . Meanwhile ADR is a sprint – swift and friendlier .
This article enlightens us about ADR and litigation in a comparative framework .
Alternative Dispute Resolution
Alternative Dispute Resolution also known as ADR is a collective term for methods of resolving disputes outside the courtroom. In this era where everyone is in a hurry, the desire for swift disposal of affairs is universal. These alternative dispute resolution mechanisms facilitate the quick disposal of cases making them favoured by everyone. The most prominent methods of dispute resolution are mediation , conciliation , negotiation and arbitration. All these methods have a common feature that is , they all are fought outside the traditional courtroom , however they are governed by different sets of rules .The primary advantages of alternative dispute resolution are its speed, privacy and adaptability.These tools of resolution come into play at different levels and have a harmonious character. They seek to resolve disputes outside the typical boundaries of the court, often aimed at preserving relationships, reducing costs and saving time.
Types of Alternative Dispute Resolution :
Arbitration : In the process of arbitration a neutral arbitrator is appointed , to whom the dispute is submitted. The arbitrator is an independent and unprejudiced third party , whose decision is known as an arbitral award .Such arbitral decisions are typically legally binding on the parties and can be enforced through the legal system. The parties are free to decide the number of arbitrators , venue, language , and the procedural framework to be followed .
Mediation : Here a third party is voluntarily appointed to facilitate communication between the disputing parties. This neutral third party or the middleman is known as a mediator. Unlike a judge or an arbitrator , the mediator does not impose his decision on the parties, rather he guides the parties to reach a mutually agreeable conclusion. Mediation is recognized for its cooperative approach which is suitable for preserving the delicate fabric of relationships such as family matters or workplace disagreements .In this process, the parties decide the final outcome , with the mediator serving only as a guide to help them reach that decision.
Conciliation : Just like arbitration and mediation , conciliation is also a voluntary, confidential, and flexible process . A neutral third party , known as the conciliator , assists the disputing parties to reach an amicable solution. A conciliator plays a more active role than a mediator , he not only facilitates communication between the parties but also actively proposes options for settlement. This settlement only becomes binding when recorded in writing and signed by both parties.
Negotiation: It is a simple and direct form of resolution which involves dialogues between the two or more disputing parties with the object of reaching an amicable settlement . In this process, no third party is directly involved, and the parties willingly choose to engage in negotiation. The parties are not bound by any fixed rules , and they often focus on a settlement which is favourable for both the parties .
Online Dispute Resolution : This is conducted partially or wholly online through digital platforms. This involves traditional alternative dispute resolution techniques without even requiring physical meetings. It has grown rapidly with the growing e-commerce and cross-border trade where litigation is impractical and expensive. Parties are free to participate in these from any part of the world.
Perks of Alternative Dispute Resolution
- Faster Disposal of Affairs : These alternative dispute resolution techniques are faster than traditional court proceedings as they do not involve lengthy processes.
- Cost-effective : ADR involves fewer procedural formalities which means reduced expenses .
- Preserves Relationships : The cooperative nature of the ADR , aims at maintaining relationships and professional business ties.
- Flexible Process : The process of ADR can be molded as per the needs to suit the dispute. It does not involve typical technicalities of litigation making it an easier approach for the parties.
- Confidentiality : The dispute is settled behind closed doors , preserving privacy . ADR processes generally maintain a higher level of confidentiality compared to traditional litigation.
Limitations of Alternative Dispute Resolution
- Limited Enforceability : The ADR methods are not enforceable in the court of law unless they are formalized in writing into a contract or court order. However, arbitral awards are legally binding.
- No Precedential Value : The decisions of ADR processes do not contribute to legal developments.
- Limited Scope : ADR is not suitable for dealing with criminal matters such as matrimonial offences, disputes involving public rights and serious statutory violations.
- Imbalance of Power : The outcome of ADR may be biased if one party is more powerful – financially, socially or legally than the other.
- Confidentiality Concerns : Online Dispute Resolution (ODR) is prone to data breaches , hacking or unauthorized disclosure.
- Limited Appeal Options : ADR provides very narrow or restricted grounds for filing an appeal . This finality may be seen as an advantage but it can also be a disadvantage if the settlement is flawed.
Traditional Litigation
Disputes have always been inevitable in human interaction , they arise out of various relationships and transactions such as commercial transactions , family disputes, or contractual obligations. For decades, the go-to mechanism for dealing with disputes has been traditional litigation . The formal process of presenting a case before the court is known as litigation. The process includes pleadings , submission of evidence, trials, arguments and appeals. The nature of litigation is adverse , each party argues its case with the sole object of winning .The decision of the court is enforceable by law and it is binding on the parties.
The court proceedings are generally accessible to the public, promoting transparency and fostering public confidence in the judicial system. In litigation the scope of appeal is much wider than ADR. Parties are legally entitled to challenge the decision by approaching the higher courts. The judge acts as an impartial adjudicator in litigation, and the parties are positioned against each other . It follows well established rules of evidence and procedure , leaving a very small space for flexibility. This feature of litigation makes it a rigid and complex process.
Perks of Litigation
- Legal Enforceability : The judgements are legally enforceable and binding upon the parties and are backed by the state’s enforcement mechanism .
- Predictability : The decisions of the court are often predictable as they are backed by judicial precedents . These precedents guide the judge to draw a fair and reasonable conclusion.
- Public Record : The decisions of the courts are often formally recorded and can later serve as a precedent or evidence in the future disputes.
- Suitable for Complex Matters : Complex matters such as criminal cases, matrimonial offences or public safety crises can not be resolved by alternative dispute resolution mechanisms . For dealing with such serious matters authoritative interpretation of laws is required which is usually practised in litigation.
Limitations of Litigation
- Time consuming: Court cases, usually the complex ones, can take years or decades to reach conclusion due to its procedural technicalities , multiple hearings, and appeals.
- High Costs : The legal fees, court fees, expenses of an expert witness,and documentation costs make a hole in the pocket. These things make litigation expensive beyond the reach of ordinary individuals.
- Public Exposure : Nothing is confidential in court proceedings, as everything becomes a part of the public record. Maintaining privacy is nearly impossible in traditional litigation.
- Adversarial Nature: Once a relationship is dragged into the courtroom whether it is personal, business or professional , it gets damaged beyond repair. The win-lose approach of the parties and their litigators sabotages all the previous ties in order to get the judgment in their favour.
- Rigid Procedures : Strict procedural and evidentiary rules are followed in litigation , limiting its scope for flexibility.
- Backlog of Cases : The courts in India are flooded with cases everyday, creating a huge backlog of cases. This backlog delays the delivery of justice.
- Psychological and Emotional Strain : Sometimes these court battles get stretched for years and the unsettled dispute becomes a reason for the stress, anxiety and emotional exhaustion in the parties involved.
Comparative Analysis of Traditional Litigation and Alternative Dispute Resolution
Traditional litigation and ADR presents two pathways for dispute resolution which are poles apart , each one has unique characteristics. Litigation is the conventional method conducted within the judicial forum under strict regulations of law. Meanwhile ADR operates outside the traditional courtroom boundaries , unrestricted by the procedural and evidentiary rules.
Litigation is a public process ensuring transparency and developing legal precedents , in contrast , ADR preserves not only secrecy but also personal and professional relationships.
Where litigation is well known for its tremendous backlogs and delayed processes , ADR is famous for speedy resolutions , flexibility and cost-effectiveness. Nevertheless , it has limitations too, such as restricted grounds for appeal and legal enforceability of settlements without court’s assistance.
From a comparative perspective , litigation is more suitable in complex cases where authoritative interpretation of laws is required , or issues where setting judicial precedent is crucial. ADR , on the other hand, is better suited for disputes where the priority lies in preserving the relationship and maintaining confidentiality of the matter.
The choice between litigation and ADR depends on several factors such as complexity of the case, willingness of the parties to cooperate, and the importance of confidentiality for the parties. Moreover many commercial contracts now include the alternative dispute resolution clauses that require parties to attempt resolution through mediation or arbitration before resorting to litigation , as litigation is the final resort.
Conclusion
The landscape of justice is ever evolving , so now the pursuit of justice is no longer confined to the walls of a courtroom. Traditional litigation stands as the pillar of authoritative, enforceable justice , while alternative dispute resolution offers the agility, privacy and adaptability that modern disputes often demand. The future of the dispute resolution lies not in rivalry but in harmony- where the courtroom and the conference table work side by side to deliver justice wisely, swiftly and with lasting impact. As the disputes grow more complex and diverse , the smart path forward blends the structure of litigation with the flexibility of ADR , creating a judicial system that is both rigid in principle and flexible in practice.
Reference
- https://www.law.cornell.edu/wex/alternative_dispute_resolution
- https://www.pon.harvard.edu/daily/dispute-resolution/what-is-alternative-dispute-resolution/
- https://legalaffairs.gov.in/sites/default/files/Arbitration_Mediation.pdf
- https://thelegalschool.in/blog/adr-vs-court
- https://www.legalserviceindia.com/legal/article-13532-adr-v-s-litigation-which-one-is-the-better-option-for-resolving-disputes-in-india-.html
- https://prowsebarrette.com/advantages-of-adr-over-litigation/
