Alternative Dispute Resolution (ADR) - The better combat

We live in a society where everyone has the right to express their thoughts and expressions. Different people can have different thoughts and disputes are bound to happen in that case. To provide for a better and sustainable mechanism for the dispute resolution the states came up with the courts. Excessive disputes made the courts overburdened and aren't able to deliver proper, precise, and achievable justice for the citizens sometimes. This brought in the need to introduce a quicker mechanism for Dispute Resolution, as a result, Alternative Dispute Resolution (ADR) was introduced as a tool for expeditious dispute resolution. ADR is encompassing all the permitted processes of dispute resolutions other than litigation. Alternative Dispute Resolution is actually process optimization to dispute resolution. Section 89 of the Code of Civil Procedure provides for settlement of disputes outside court. In Afcon Infrastructure Ltd. V. Cherian Varkey Construction Company Pvt. Ltd. the Apex Court while discussing Section 89 gave a list of cases considered not suitable for the ADR process. It goes as under- 1. Representative suits under Order 1 Rule 8 CPC which involves public interest. 2. Disputes relating to the election of public offices. 3. Cases involving serious allegations of fraud, fabrication of documents, impersonation, etc. 4. Cases requiring protection of courts. 5. Cases involving the grant of authority by the court. 6. Cases involving prosecution for criminal offenses.

Indian Constitution mandates Alternative Dispute Resolution (ADR) in three articles, Article 14, Article 21, and Article 39-A. Article 14 mentions that no person shall be denied the Right to Justice. Article 21 gives every person the Right to Life. Article 39-A provides for equal justice and free legal aid.

Alternative Dispute Resolution consists of three methods - I. Arbitration II. Mediation III. Conciliation

I. ARBITRATION - Arbitration is the most used process of all three methods. Arbitration is generally used in every type of commercial contract to make the dispute resolution easy, private, and cost-effective. The parties need to make an arbitration agreement before the dispute arises generally. The arbitration agreement can be in the form of a separate agreement or a clause in the contract itself. The Arbitration agreements are generally very badly drafted keeping scope for either of the party to escape arbitration which is called a bad arbitration clause also known as Pathological Arbitration Clause. The clause should mention all the necessary things like the place of arbitration, the law governing the contract and the arbitration agreement, language of arbitration, cost of arbitration, include all types of disputes, and should be in such a language that no scope for opting out of the clause is there. When the arbitration seat is outside India the award is termed as Foreign Award. The Singapore International Arbitration Center (SIAC) is the most preferred arbitration center in Asia and third in the world. When one party is Indian and other foreigners and the seat of Arbitration is in India then it is International Arbitration but the award is Domestic Award. Geneva Protocol and New York Conventions are the most important. Geneva Convention came in the year 1927 and New York Convention in 1958. International Commercial Arbitration was first used in Greece in the time of Romans. Since then it has been used in about 90% of all of the International Contracts. It even enjoys the monopoly of being the most preferred dispute resolution method across various jurisdictions. The Advantages include Flexibility, Party Autonomy, Confidentiality, Powers of Arbitrators, less time-consuming process as compared to litigation. The two types of Arbitration are Ad Hoc and Institutional Arbitration. In Ad Hoc arbitration the procedure to conduct the arbitration is decided by the parties. However, the trouble and difficulty of creating the procedure can be escaped by choosing the rules of any Arbitration Institution without submitting the arbitration to an institution. In Institutional Arbitration, the arbitration is conducted under the supervision of an institution in accordance with its rules of procedure pertaining to arbitration. The Arbitration agreement/ clause shall always mention about the nature of arbitration to be used in case of a dispute. Some of the institutions prominent internationally are the International Chamber of Commerce (ICC), London Court of International Arbitration (LICA), Singapore International Arbitration Center (SIAC), etc. As far as India is considered some of the well-known institutions are The Indian Council of Arbitration (ICA) and Federation of Indian Chamber of Commerce and Industry (FICCI). II. MEDIATION - "An ounce of mediation is worth a pound of arbitration and a ton of litigation!" — Joseph Grynbaum.

Mediation is nothing but assisted negotiations. It is a process where a neutral intervenor comes in between the parties to the dispute to come to an agreement. The powers of deciding the terms of the settlement are in the hands of the parties, not the mediator. The final terms are recorded in the form of a binding agreement. In mediation, the important point is that the mediator has to only make the parties settle their dispute with questions not by providing them with suggestions. Only the word seems to be easy but it is not really an easy task for the mediator to do. The Impartiality of the mediator is very important, he should be neutral at all points. Since the parties will not be able to think neutrally on their dispute and hence they appoint a mediator. The entire mediation procedure is strictly confidential for the mediator and the participants, as no one wants their dirty laundry to be aired in public at any cost. The next best point of mediation is the parties control the process wholly. It is also more cost-effective and also time-saving as it hardly takes six months and on the other hand arbitration takes around 1 year generally. Here the parties are asked to develop its BATNA (Best Alternative to Negotiated Agreement) and WATNA (Worst Alternative to Negotiated Agreement). This generally helps the parties to see the balance in favor of the settlement and to weigh their options. To ease the burden of courts reeling under huge pendency of cases, The Hon'ble Chief Justice of India S. A. Bobde recently stressed for comprehensive legislation on pre-litigation mediation, which is already a trend in developed nations such as the US, Canada, UK, Australia, and Singapore, so that the lengthy litigation would become a thing of the past in India. Mediation can be Ad Hoc, Institutional and Court Annexed, or Court Mandated. Court annexed means when the court refers to the dispute for mediation and appointment is done by the mediation center. In India, court-mandated mediation is mainly undertaken by court-annexed mediation centers under Section 89 of the Code of Civil Procedure, 1908, Section 442 of Companies Act, and also under the Commercial Courts Act.

III. CONCILIATION -

Conciliation means dispute resolution as an alternative to litigation. It is basically a process whereby a Conciliator is appointed who makes the parties to the dispute come to a viable settlement. Conciliation has not been defined anywhere in the Arbitration and Conciliation Act, 1996, or The Code of Civil Procedure, 1908. The procedure of Conciliation is the least used method among all the methods of ADR as the end result i.e. the settlement agreement is not binding on the parties and also the procedure is a bit lengthy and time consuming as compared to the other methods of ADR.

Conclusion: To conclude as I always say that litigation is not always the best option to combat, it is better to sit and settle the disputes away from the courts. "Point out to them that how the nominal winner is often the loser" rightly said by Abraham Lincoln. Being a student pursuing Post Graduate Diploma in Alternative Dispute Resolution from NALSAR, Hyderabad, I have been fortunate enough to be taught by some of the most eminent personalities in the fields of Arbitration and Mediation and this article is all their teachings coming together.