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Ethical Dillema of ADR in India

In the following paper, we discuss what arbitration is, as well as the ethics and problems associated with the ADR process. These moral standards are crucial for everyone who finds it difficult to resolve a dispute through alternative dispute resolution (ADR). This procedure raises certain ethical issues, some of which are already covered below in this article.

The process of alternative dispute resolution is expanding quickly as technology advances. Due to the overwhelming number of cases that are pending in Indian courts, the people there do not receive justice in a timely manner. And the most crucial component for people to seek justice promptly and without delay is a fair and swift trial. The Indian government developed the idea of fast-track courts to address this problem, and one of the mechanisms is alternative dispute resolution.

There are numerous various processes that are used, including arbitration, conciliation, mediation, and many others. ADR is a distinct kind of process from litigation because there is no risk of one party losing the case and another winning it in ADR. There are some common aims in this process, and parties obtained these goals by means of negotiation.

What Is Alternative Dispute Resolution:
ADR is a system that enables parties to reach a fair settlement of their differences within the allotted time frame and at a reasonable cost. It promises to handle all types of family, civil, business, and industrial disputes. In this situation, the parties negotiate face-to-face until they reach a mutually beneficial agreement. This strategy offers a chance to lessen enmity between the parties while preserving cooperation.

The government is using this ADR procedure, besides other objectives, to lessen some of the strain on the courts, to keep people's faith in the Indian legal system, to provide political justice promptly, and to preserve social integrity.

Listed below are some techniques for resolving issues between the parties:
  • Arbitration: It is a type of dispute resolution in which an impartial third party, known as an arbitrator, reviews the relevant evidence. This approach is distinct from the mediation process in that neither side is required to use it. Only when both parties have mutually agreed to have their problems arbitrated may the arbitration procedure be made mandatory. There are various sorts of arbitration, including Ad-hoc arbitration, mandatory arbitration.
  • Mediation: Mediation is a different type of ADR process that is simple and optional. A mediator is a third party who is neutral and assists the parties in using communication and negotiation strategies to settle their conflicts out of court. The mediator's role in this process is crucial for helping the parties come to an agreement and settle their disagreement. The parties can reach their agreement, and both parties have a neutral mediator present during the session; therefore, the mediator's decision is not obligatory. The mediation session is initiated by outlining the problem from both sides, and it is held in a private space.
  • Lok Adalat: In 1982, the first Lok Adalat was held in the Gujrat village of Una. The Lok Adalat's handling of the situation is following the 1987 Legal Services Authorities Act. These Lok Adalats were established by the government to resolve conflicts through conciliation. This agreement was reached through legitimate discussions. It is a particular organization for resolving conflicts, promoting social justice, and serving as a judicial body.
There are numerous other types of techniques used to settle conflicts between parties, similar to these.

Ethics Of ADR In India:
The process of determining whether something is fair or not is known as ethics. These factors, however, vary from person to person. In some cases, something may be right for one individual while being incorrect for another. If we discuss the ADR process' ethics, we should note that they call for fairness, the disclosure of any secret information, accountability, and a host of other principles.

As we saw before, the goal of this procedure is to uphold social justice and maintain the integrity of society. However, when lawyers communicate with their clients, they attempt to undermine the concept of ADR. To win the lawsuit, the lawyers are faking the resolution process. The primary ethical rule that a lawyer should follow is to put the interests of their client before their own.

They should also conduct themselves fairly and honestly throughout the process. Likewise, you must respect this procedure. The major goal of this approach is to strike a balance between the two such that no client suffers a loss as a result.

The alternative dispute resolution (ADR) procedure should adhere to some ethical standards, including:
The mediators should be impartial, fully disclose all parties' potential conflicts of interest, and conduct the session openly and straightforwardly. Any information conveyed to the mediator in the private space must remain a secret. The mediator oversees the entire meeting and maintains the secrecy of the proceedings.

Fairness must prevail during the meeting, and a third party should treat both parties fairly and provide them with equal opportunity. Additionally, the impartial party has no right to divulge any confidential information to the parties without first getting their permission.

The lawyer or advocate who represents the client can only offer counsel on the options; the client retains full decision-making authority during the session. When setting any negotiation parameters, the attorney must get the client's approval. He or she must also not decide how the client should behave and must not accept a settlement without the client's approval.

The neutral party's responsibility is to ensure that the parties are aware of the procedure and prepared for the settlement during the session (mediator, arbitrator). A lawyer should make sure that the settlement agreement is in the client's best interests and is both enforceable and legitimate.

The mediator must recognize that he is the judge and that the agreement reached or the counsel offered by the third party is not enforceable against any of the parties. The mediator should be impartial towards both parties; it is like looking at two sides of the same coin. The mediator has a responsibility to inform the parties of the confidentiality agreement after the meeting and to refrain from publicly discussing the proceedings.

The neutral party must adhere to professionalism and conduct themselves professionally throughout the process, and they must possess the expertise and experience needed to handle disagreements. They are responsible for their choices and behaviour during the session.

Ethical Issues Of Alternative Dispute Resolution In India:
The Indian Institute of Arbitration & Mediation (IIAM) provides the moral guidelines that were previously discussed. To provide institutional ADR services, training programmes, and accreditation of ADR experts, this institute was founded in India in 2001.

The Asia Pacific Centre for Arbitration & Mediation (APCAM) was founded with this institute as one of its founding members. It offers facilities for ADR, which comprises domestic and international commercial arbitration, mediation, and negotiation. Iiam provides these ethics for the sake of individuals.

These ethical standards are in place to prevent the exploitation of people and to safeguard the interests of all parties. This transparency should ensure the continuation of the programme and the session.

However, there are certain problems with these ethics, which are covered below:
  • There are some situations where the neutral third party (arbitrator, mediator, etc.) favors one party over the other, although this is against the ethics of the ADR process because both parties are two sides of the same coin. Because of a personal connection to one party or because one party is occasionally more powerful than the other, the third party occasionally favored only one of the parties.

  • The impartial third party and the advocate both need to obtain the parties' consent in this process. When the parties feel free and are not under any form of pressure, the ethical issues should be taken into account. Only in this way can decisions be made and disputes resolved between the parties. But occasionally, the decision to settle is made by the advocates without the other party's permission.
  • Confidential information is the most crucial aspect of the party and should never be disclosed by the advocate in a session without the party's consent. This information should also never be disclosed to a third party without the parties' consent, but occasionally an advocate will disclose confidential information to the parties to reach an agreement with another party.

  • Sometimes a mediator lacks the information and abilities needed to run a productive session. The third party must possess the information, abilities, and experience required to conduct the session efficiently and effectively following the ethical standards.

  • To avoid conflicts of interest, the third party should not be permitted to divulge any business or personal relationships with the parties. If a third party reveals that they have any kind of connection to the parties, the other party may believe that the settlement will be unfair and benefit solely them.
  • In the conversation, both parties should have an equal opportunity. By doing so, it will be done fairly and appropriately. Additionally, the process will be made more transparent between the parties, as there won't be any legal requirements or rules in place.

  • When two parties don't have equal influence, it signifies that one is in a strong economic position while the other isn't. Examples of the parties' relationships with customers or businesses include those between employers and employees. When the wealthier party tries to undermine the weaker party, ethical problems arise.

  • There should be no pressure placed on either person to choose while under the influence of the other, and both parties should be willing participants in the session. The conflict should be resolved voluntarily by the parties. Both parties have the right to make well-informed decisions, so the third party should explain the entire procedure in detail.

  • The third party's (arbitrator, mediator) fees should be appropriate given the nature of the dispute. When these payments are excessive or disproportionate to the services rendered, ethical quandaries result.

As this article comes to a close, it can be said that ADR is a mechanism that not only helps people obtain justice quickly but also lessens the burden on the courts. Other benefits of this process include saving time, being less expensive, giving parties control over their lawyers, giving them more flexibility, obtaining creative solutions, maintaining relationships between the parties, and avoiding paying high legal fees.

While the session or process is ongoing, the neutral party and the advocates should adhere to certain ethical standards, much like in litigation. For the process or session to go smoothly, certain ethics are crucial. Although these ethics have already been covered before, these bring up some problems.

These morals are not taken seriously by people. There are occasions when a meeting is not conducted equitably, a neutral third party exhibits bias due to financial or other personal considerations, there is infrequent communication between the parties, and occasionally an advocate will act on behalf of a party without that party's agreement. Therefore, ethics should be upheld to preserve social integrity.

End Notes:
Written By: Dipansha Agrawal, Lloyd Law College

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