JUSTICE REDEFINED: THE IMPLICATION OF ALTERNATIVE DISPUTE RESOLUTION IN CONTEMPORARY FRAMEWORK BY - MR.VIBHANSH SONI
"JUSTICE
REDEFINED: THE IMPLICATION OF ALTERNATIVE DISPUTE RESOLUTION IN CONTEMPORARY FRAMEWORK"
AUTHORED BY - MR.VIBHANSH SONI
2nd year B.A (Hons.) LL.B student
Christ University/College in Pune (Lavasa Campus)
ABSTRACT
Due to the heavy
caseloads burdening their legal systems, developing countries often struggle to
deliver timely justice. For individuals relying on litigation to resolve their
disputes, the saying "justice delayed is justice denied" resonates
deeply. However, tribunals cannot be solely blamed for the rise in litigation;
a significant factor is the lack of negotiation avenues before resorting to the
legal system. Alternative dispute resolution (ADR) is emerging as a promising
solution to this issue, inspired by its successful use in developed nations.
ADR includes various methods for resolving conflicts that do not involve
traditional court proceedings. It arose in the United States during the 1970s
as a way to circumvent the costs, delays, and adversarial nature of litigation.
On a global scale, alternative dispute resolution (ADR) serves as an effective
tool for enhancing conflict settlement processes. It addresses the limitations
of traditional litigation by focusing on efficiency, accessibility, and
fairness, whether through community-based initiatives or court-affiliated
methods.
INTRODUCTION
Alternative dispute
resolution includes various methods for resolving conflicts outside of the
courtroom. Driven by the need to sidestep the costs, delays, and adversarial
nature of litigation, the modern ADR movement took root in the United States
during the 1970s. Advocates for court reform are pushing for its use in
developing countries for these reasons and more. With the introduction of
Section 89 of the CPC and the amendments to the Arbitration and Conciliation
Act 1996 in 2015, alternative dispute resolution methods have taken on a key
role in alleviating backlog and encouraging quick and cost-effective resolution
of disputes. Additionally, some nations are exploring alternative dispute
resolution as a way to revitalize and reform traditional mediation systems.
Many people in developing nations, where a large number rely on litigation to
settle disputes, feel frustrated with the judicial system and its ability to
deliver justice due to overcrowded courts and the significant number of ongoing
cases. The saying "justice delayed is justice denied" is a key reason
for this sentiment. However, the courts cannot be solely blamed for the surge
in cases, as it is widely recognized that the lack of negotiation methods
before resorting to litigation contributes to the problem. In response to this
situation, alternative dispute resolution methods are being introduced in these
countries. These approaches, which have proven effective in providing quick and
amicable resolutions in developed nations, are being adapted and implemented in
developing countries to enhance their judicial systems. ADR today can be divided into two primary
categories: community-based dispute resolution methods and court-annexed
options. Court-annexed ADR includes early neutral evaluations, summary jury
trials, mini-trials, and other approaches alongside mediation and conciliation,
which is the traditional process where an impartial third party assists the
disputing parties in reaching a mutually acceptable solution. Supporters argue
that these methods not only help maintain important social connections among
disputants but also enhance access to justice and alleviate the backlog of
cases by reducing the costs and time associated with litigation.
Community-based alternative dispute resolution (ADR) often operates outside the
formal court system, which can be perceived as unfair, expensive, remote, or
otherwise inaccessible to local communities. Many innovative initiatives build
on earlier models of popular justice that relied on community leaders,
religious figures, or elders to help mediate conflicts. Some definitions of ADR
also include business arbitration, a commercial adversarial process where a
neutral third party provides a legally binding decision. Private arbitration
centers play a significant role in resolving business disputes in the US and
are becoming increasingly common in other regions as businesses seek
consistency and efficiency.
AN OVERVIEW OF VARIOUS FORMS OF ADR
Ancient practices of
mediation, conciliation, and arbitration existed long before the current
Anglo-Saxon adversarial justice system. In India, prior to British rule,
businesspeople often relied on different forms of mediation and arbitration.
The Mahajans, who were respected, fair, and shrewd entrepreneurs, used
mediation to resolve disputes among merchants. They were easily accessible at
business hubs to help arbitrate conflicts among members of business
associations. In 1996, the Indian parliament enacted the Act on Arbitration and
Conciliation, which set forth detailed guidelines for resolving disputes
arising from legal relationships, regardless of whether they are contractual,
along with all related actions. The Act allows for the initiation of
conciliation procedures, the appointment of experienced conciliators, and the
recommendation or nomination of conciliators by appropriate institutions.
Additionally, parties can present their assertions to the conciliator, whose
role is to assist them in negotiating a resolution to their disputes. ADR also
includes business arbitration, where an impartial third party makes a legally
binding decision in disputes between companies. Private arbitration centers are
increasingly being established around the world, providing businesses with
reliable and effective options for resolving disputes, particularly in
developed countries like the US. In contrast, community-based alternative
dispute resolution (ADR) occurs outside formal legal systems and is especially
relevant in areas where people find courts to be costly, distant, or
inaccessible. In developing countries, many contemporary ADR programs draw from
traditional dispute resolution methods, often facilitated by elders, religious
figures, or community leaders. These community-based approaches help alleviate
the burden on those involved in disputes while offering solutions that are
culturally appropriate and acceptable to the local context.
ARBITRATION
The Arbitration Act of
1940 marked the introduction of arbitration law in India. This was followed by
the Foreign Awards Act of 1961 and the Arbitration (Protocol and Convention)
Act of 1937, which established additional supportive regulations. However, due
to the common challenges faced regarding awards, arbitration under these laws
often fell short and typically led to more litigation. To improve the
efficiency of both domestic and international arbitration in India, the
legislature enacted the Arbitration & Conciliation Act in 1996.
COMMERCIAL
ARBITRATION: The agreement between the parties to submit their dispute to arbitration
constitutes a legally binding contract, as commercial arbitration is based on
either contract law or treaty law. All arbitral rulings are considered
"final and binding." However, this does not eliminate the need to
meet legal requirements. Arbitration can be used to resolve any issue that is
not legally prohibited from being arbitrated (such as criminal proceedings).
LABOUR
ARBITRATION: To address employee complaints regarding the enforcement of employer policies
or allegations of employee misconduct, employers with non-unionized workers are
increasingly turning to organizational problem-solving methods, one of which
involves arbitration by an impartial arbiter. In the construction industry,
interest arbitration remains a common approach to resolve disputes that arise
during wage negotiations. Additionally, arbitration has been employed by both
employers and unions to resolve employee grievances stemming from collective
bargaining agreements.
JUDICIAL
ARBITRATION: Family law, especially in the realm of child custody, is a significant
area where judicial-ordered arbitration has been adopted across various state
court systems. A trial de novo is permitted, and judicial arbitration often
serves as a consultative process, functioning as an initial step toward
reconciliation without placing any legal obligations on either party.
"Arbitration"
is one of the methods available for resolving disputes. According to Section
89(2), the provisions of the 1996 Arbitration and Conciliation Act apply when a
disagreement is referred for arbitration or conciliation, just as if the
proceedings were initiated under the 1996 Act. When there is an arbitration
agreement in place, Section 8 of the 1996 Act outlines the authority to direct
parties to arbitration. The judgment in P. Anand Gajapathi Raju v. P.V.G. Raju
[2000 (4) SCC 539] confirms that the 1996 Act is relevant when both parties
consent to arbitrate a dispute, whether before or during the ongoing
proceedings. However, the 1996 Act does not specifically address situations
like those in Section 89 of the code, where the court encourages the parties to
select from various alternative dispute resolution methods, including
arbitration, and the parties opt for arbitration. Naturally, the parties must
agree to proceed with arbitration.
MEDIATION
While Section 30 of the
Act originally set up mediation as an alternative method for resolving
conflicts, it lacks the detailed guidelines for mediation that it provides for
conciliation. However, in 1999, an additional Section 89 was incorporated into
the CPC when the legislature enacted the Code of Civil Procedure (Amendment)
Act, 1999 (the "CPC Amendment Act"). This new section introduces the
concept of "judicial mediation," distinguishing it from
"voluntary mediation." As it stands now, a court has the authority to
identify which cases can be settled, outline the terms of that settlement, and
seek input from the parties involved.
In general, mediation
includes several key elements or phases:
•
A
disagreement, conflict, or need for decision-making or problem-solving between
parties;
•
The
decision-making authority stays with the parties involved rather than a neutral
third party;
•
The parties
must be willing to express their interests and goals and work towards a
constructive solution;
•
The aim is to
reach a favorable outcome with the help of an impartial, independent third
party.
As mediation becomes more
widely accepted, it may replace traditional legal and judicial processes
sanctioned by nation-states. Critics, including those from the
anti-globalization movement, argue that these formal procedures have failed to
provide the real safety and closure needed to uphold a consistent rule of law.
Recently, mediation has been increasingly recommended for resolving
international disputes, particularly in high-stakes situations, due to its
rising popularity and a greater understanding of its key elements and potential
outcomes. Mediators have started to
explore different practice areas and promote various philosophies and methods
of dispute resolution, driven by the growing acceptance of mediation and the
fierce competition in the field. Additionally, those pursuing mediation
training come from a wide range of professional backgrounds and possess diverse
specialties. In 2000, American
trainers from the Institute for the Study and Development of Legal Systems
(ISDLS) carried out the first extensive mediation training in Ahmedabad.
Following this, two prominent lawyers from Ahmedabad decided to establish the
Institute for Arbitration Mediation Legal Education and Development (AMLEAD), a
Public Charitable Trust, to host a series of advanced training workshops. The
official inauguration of the Ahmedabad Mediation Centre, which appears to be
India's first mediation center managed by lawyers, took place on July 27, 2002,
officiated by the Chief Justice of India.
CONCILIATION
Part III of the Act has
now included conciliation, which is seen as one of the most effective methods
for resolving disputes. For the first time, the conciliation process has
received statutory recognition through a set of detailed engagement norms. Conciliation is a non-adjudicatory alternative
dispute resolution (ADR) procedure that follows the rules set out in the AC
Act. A valid suggestion for conciliation can only be made if both parties agree
to engage in negotiations with a third party, either through a mutual agreement
or by accepting the process described in section 62 of the AC Act. This is
followed by the appointment of a conciliator or conciliators as outlined in
section 64 of the AC Act. If neither party is willing to participate,
conciliation will not occur. Therefore, the court cannot mandate the parties to
enter conciliation under section 89 without the consent of all involved,
similar to the situation with arbitration. The Act is based on the UNCITRAL
Model Arbitration Law and the UNCITRAL Conciliation norms. It is a non-binding
process where an impartial mediator assists the parties in reaching a mutually
agreeable solution. According to Section 61 of the Act, conciliation will be
applied in all matters related to a legal relationship, whether contractual or
not, as well as in disputes that arise from it. The conciliation mechanism does
not hold any legal status, and the conciliator typically lacks the authority to
call witnesses, collect evidence, draft a decision, or issue an award. This
sets conciliation apart from arbitration. Unlike mediation, the primary aim of
conciliation is to achieve a compromise, often through concessions. In most
cases, the parties do not sit face-to-face at the table with the conciliator.
The differences that arise can be viewed as distinctions from a broader
category. The time it takes to
resolve a disagreement through alternative dispute resolution (ADR) methods,
compared to traditional litigation, is another aspect of efficiency that these
procedures provide, alongside the potential cost savings of mediation and
conciliation. It's no surprise that many jurisdictions worldwide are integrating conciliation into the civil justice systems
to expedite the resolution process for litigants and, consequently, alleviate
the backlog of cases in the courts. Additionally, Burger CJ, the Chief Justice
of the US Supreme Court at the time, suggested that individuals facing issues,
such as those in distress, should seek help as early as possible and at the
lowest cost.
BRIEF HISTORY OF ADR (ALTERNATE DISPUTE
RESOLUTION)
Looking for alternatives
to the traditional legal system, which many viewed as confrontational, costly,
unpredictable, inflexible, overly formal, damaging to relationships, and
limited to rights-based solutions instead of creative problem-solving, led to
the rise of alternative dispute resolution (ADR) in the United States. Given
aspects of the American legal system, such as jury trials for civil cases,
contingency fee arrangements for lawyers, and the partial application of the
"loser pays" rule, it's not surprising that this concept took root
there. The use of mediation and arbitration as a way to
resolve conflicts began to gain traction in the late nineteenth century,
particularly as a response to the contentious disputes between management and
labor. In 1898, Congress recognized the importance of mediation for collective
bargaining issues, following similar initiatives that had emerged in
Massachusetts and New York a few years earlier. This led to the creation of
specialized mediation organizations, such as the Federal Mediation and Conciliation
Service in 1947 and the Board of Mediation and Conciliation for Railway Labor,
which was renamed the National Mediation Board in 1943. These organizations
were funded to help mediate disputes that arose from collective bargaining.
Over time, states also began to offer more labor mediation services. The New
Lands Act of 1913 and other subsequent legislation illustrated that maintaining
industrial peace could be achieved through the resolution of collective
bargaining disputes, with conciliation, mediation, and voluntary arbitration
playing key roles in facilitating settlements.
MEDIATION, THE ABROGATION OF LEGAL ENTITLEMENT
AND ‘JUSTICE’
Mediation raises
important issues about the possible removal of legal rights and how justice is
perceived. Mediation can sometimes
lead to an avoidance of justice, which is a point of criticism. Unlike
adjudication, where an impartial judge makes decisions based on established
legal standards, mediation reframes disputes through a "harmony"
perspective, turning them into extralegal issues that require dialogue and
compromise. This viewpoint ties justice closely to the law, disregarding other
factors and standards that could also signify justice, and overlooks the
complexities involved in interpreting the law imperfectly. However, it's
important to recognize that the law isn't the only source of justice; in fact,
parties may not always agree with legal terms. Recent studies indicate
that respondents believed attorneys' focus on legal strategies diminished the
importance of issues that mattered to them. Individuals may seek something
entirely different from mediation, such as clarification or an expression of
remorse. When stronger parties exploit the mediation concept
of voluntariness to unfairly sway weaker parties, it can create imbalances in
bargaining power. This discrepancy raises an ethical question about whether
mediated agreements truly reflect free and informed consent. Critics argue
that, instead of achieving fair and just outcomes, mediation in these cases may
perpetuate existing structural injustices. Mediation is a valuable
tool in the judicial system despite these concerns. Unlike confrontational
litigation, it emphasizes cooperation and tailored solutions, often leading to
more satisfactory results for those involved in disputes. Furthermore, by
preserving relationships and encouraging a collaborative approach to resolving
conflicts, mediation can foster social harmony. In many cases, it provides an
attractive and culturally relevant method for resolving disagreements,
particularly in communities where traditional legal processes may feel
intimidating or out of reach. While mediation offers
numerous benefits, it is crucial to recognize its potential to overlook legal
rights and undermine the concept of justice. Ensuring fairness in
mediation involves implementing strong procedural safeguards, raising awareness
of legal rights, and establishing mechanisms to protect vulnerable parties. By
tackling these issues, mediation can effectively complement traditional legal systems
while maintaining the principles of justice and equity.
CONCLUSION
People often convince
themselves that justice doesn't exist when it isn't delivered swiftly. Chief
Justice Bhagwati expressed similar sentiments in his Law Day speech, saying,
"I am dismayed to see that the nation's judicial system is in danger of
crumbling. I use these strong words, but I say them with a heavy heart. Our
justice system is falling apart due to negligence. "Delays and arrears
create inefficiencies, preventing the average person from experiencing true
justice. It's easy to understand how someone could feel overwhelmed after
multiple trips to court and meetings with attorneys. Yet, many Indians,
increasingly inclined to pursue legal action, find themselves spending hours
idly waiting in court hallways. Key factors contributing to the backlog of
cases include a significant surge in the number of cases reaching courts and
tribunals, largely due to hastily enacted, flawed laws, unpredictable
administrative decisions, and a growing awareness among litigants of their
rights, fueled by numerous appealing and constitutional changes. The parties
involved in the conflict are eager for a prompt decision. As the issue of
overloaded courts has become a global concern, new strategies have been sought.
This exploration has led to the establishment of various tribunals. In India,
there are countless tribunals. However, despite the creation of these
tribunals, the pace of justice has not improved. Therefore, it is reasonable to
conclude that the solution lies elsewhere. Currently, there is a global trend
shifting away from litigation and towards alternative dispute resolution (ADR).
This approach is highly advantageous and, if implemented, could potentially
reduce the workload of Civil Courts by half. Thus, it is the Bar's essential
responsibility to embrace the challenge of implementing ADR, allowing for the
resolution of disputes without getting lost in the complexities of judicial
procedures and technicalities.
John F. Kennedy once said,
"Let us never negotiate to overcome fear but let us never fear to
negotiate." This idea is especially important to consider in today's
context.
REFERNCES
http://en.wikipedia.org/wiki/Conciliation
· Gurjar, M. S.,
& Singh, C. (2024). The Significance of Alternative Dispute Resolution
in Facilitating Justice Administration. International Journal of Legal Studies,
1(1), 1–12. This study critically analyzes the role of ADR in enhancing access
to justice, alleviating court backlogs, and promoting fairness within legal
systems.
· · ·
Vyas, H. (2024). Alternative Dispute Resolution Versus Traditional
Litigation: The Modern Day Approach. International Journal of Advanced Legal
Research, 5(1). This paper explores the transformative role of ADR mechanisms
within the Indian legal system, highlighting their efficiency, cost-effectiveness,
and flexibility compared to traditional litigation.
· · ·
Shrivastava, D. (2024). Alternative Dispute Resolution in India: A
Paradigm Shift in Justice Delivery. Lawful Legal. This article examines the
crucial role of ADR in India, its various forms, legal framework, and impact on
the justice delivery system, supported by statistical data and government
initiatives.
· · ·
Rout, C. (2023). Alternative Dispute Resolution for Efficient
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