Author: - Nandini Srivastava
3rd Year B.A. LL.B (Hons.)
Manipal University, Jaipur
Alternate Dispute Resolution is an out of court way of settling disputes between the parties. It comprises mechanisms like Mediation, Conciliation, Arbitration, Negotiation and Lok Adalat. It has gained mass popularity because it is cost-effective, speedy, reduces the burden of the courts and ensures confidentiality.
It is a voluntary process adopted to resolve legal conflicts between the parties by a third-party intervention. Parties enter into a written contract and appoint a mediator. A mediator can be anyone who helps to identify issues, clear misunderstandings, realise priorities and assist the parties in coming to a settlement. The parties can either directly communicate with the mediator or appoint an ADR lawyer who legally explains the issue to the mediator. The decision to adopt this process to resolve a dispute can be the personal decision of the parties or it can be court-mandated. The decision of mediation is non – binding on the parties. The parties can either agree to accept the decision or reject it.
Conciliation is considered similar to mediation. In this also, the parties appoint a neutral third party called conciliator to resolve disputes but, there are certain differences between conciliation and mediation. The differences are:
- The mediation process is adopted usually when a legal dispute already exists whereas the conciliation procedure is adopted as a preventive measure to avoid dispute.
- The mediator helps both the parties to come to a settlement on their own whereas a conciliator has the discretion to propose a solution.
- Mediation is a more formal and structure process involving three stages that are Introduction, Joint Session and Caucus in comparison to conciliation.
The decision of conciliator is also not binding on the parties.
Conciliation is more beneficial in comparison to mediation as it is a preventive measure to avoid dispute. Hence, it ensures that the long-standing relationship between the conflicting parties remains cordial and fewer sessions are required to solve the issues raised. Also, as the conciliator has the power to propose a solution to the chances of coming to a favourable result are more in comparison to mediation.
It is a dispute resolution process where each of the parties either appoints an arbitrator to resolve the dispute or each of the parties appoints a personal arbitrator who then selects a third party called arbitrator to solve this matter. The decision given by the arbitrator is called an arbitration award. This decision is legally binding on the parties. This process can be voluntarily or court-mandated.
This process is usually adopted in cases where a commercial contract is violated. The parties to the contract might have agreed earlier that any arising dispute in the future will be resolved through the arbitration process. The parties beforehand decide the place of arbitration, how the arbitrator will be appointed and language in which arbitration will take place.
It is very advantageous as the parties get to decide the manner of appointment, place of arbitration and the language. This makes the process more comfortable for them and they have more faith in the decision of the arbitrator.
4. LOK ADALAT
Lok Adalat is one of the alternate dispute resolution mechanisms. In this forum, the cases pending in the Panchayat or are at pre-litigation state are dealt. The decision of the Lok Adalat is binding and if any party is aggrieved by its decision then they are free to initiate litigation by approaching the court of appropriate jurisdiction. It is for civil cases.
It is a very common process in solving disputes. In this, the parties resolve disputes by negotiating the matter without third-party intervention. Negotiation occurs in business, non – profit organization, government branch, legal proceedings, and personal situations.
EFFECT ON ADR DUE TO THE PANDEMIC
Coronavirus pandemic has shaken the world to its core. Every country, state, district, city and street is affected by it. The governments of all the countries to protect its citizens have adopted various measures. Lockdown has been announced, the ban on traveling has been imposed, and people are practising social distancing and what not. Every aspect of life has been affected. Among all others, ADR mechanisms which aid in resolving disputes have also been impacted.
Amid this situation, people have resorted to online platforms for everything including ADR. Video – conferencing as an alternative is being used. A link is shared by the third party (neutral party appointed to assist the party in conflict) in which both the parties click and join the video call room. The matter is discussed, questions are raised and finally, a conclusion is arrived on through the video – conferencing. This method of video – conferencing is a blessing because of which disputes are being resolved and justice is administered amid this troublesome period as well but, it is a mixed blessing. It has its pros and cons.
More time and money of people are saved because now they don’t have to pay travel expenses to go to a particular geographical location for resolution. They at their home with a single click can get in touch with the people involved in this process. This is one benefit of the online procedure but on the other hand, it also leads to additional cost of setting up a screen and internet portal. Recourse to online mode also brings into focus a very prominent and the most vital issue in front of us that is privacy. Thousands of personal data and information is shared online and thus, there is a constant fear in the mind of people as to the repercussions that they will have to bear if all the information gets disclosed publicly. In a very recent case of the English Court, National Bank of Kazakhstan v. Bank of New York and Ors. the arbitration procedure was lived streamed on the internet social media site, YouTube which gave access to all the personal information of the parties concerned. Also, no one was aware of the fact that a situation like this will arise so even though people have been using technology for a long period yet no one is so equipped to depend on it for their work purpose. Therefore, a lack of knowledge of technology and computer is a major set – back. Sometimes, also, due to lack of connectivity people might face communication issues which instead of solving their problems and improving their relationship can instead jeopardize it more.
Even though there are many disadvantages to online mode ADR mechanisms yet we are left with no choice at this present time. So, to ensure that justice prevails and people get rid of their disputes it is vital that we take recourse to online mode. We need to accept its flaws, try to work on them and accept the new “normal”.
- MEDIATION DURING THIS PANDEMIC By Prakriti Suthar, https://vssap.blogspot.com/2020/06/mediation-during-this-pandemic-by.html?m=1 (last visited Sep 11, 2020).
- ADR- Arbitration vs Conciliation vs Mediation And their Differences, Advantages Google, https://www.google.com/amp/s/www.lawnn.com/adr-arbitration-vs-conciliation-vs-mediation/amp/.
- Mediation in India Mediate.com – Find Mediators – World’s Leading Mediation Information Site, https://www.mediate.com/articles/mediation-in-india-articile.cfm EVALUATION OF ARBITRATION.
- AFTER PANDEMIC By Keshav Khandelwal,