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Emerging Issues And Challenges In ADR In India

Alternative Dispute Resolution is commonly known as ADR. This is a way to resolve disputes without long trials. It saves both money and time. This is a less formal and less stressful process than the regular trial courts. The Alternative Dispute Resolution resolves matters of civil, family, commercial, etc. except criminal matters. The person who resolves the matters is called an arbitrator or mediator.

An arbitrator is a person appointed by the parties in dispute with their conditions. If the parties are not pleased with the decision of the arbitrator they are free to appeal in a court of law. For the arbitration, the government has passed an act Arbitration and Conciliation Act in 1996. The government has also established arbitral tribunals.

Different types of Alternative Dispute Resolution (ADR)

Alternative Dispute Resolution has different types which include arbitration, mediation, conciliation, negotiation, and lok adalat.
  • Arbitration
    Arbitration is a method of resolving conflicts between private parties outside of the judicial system. An arbitrator renders a ruling or an award on the case that is mostly binding on the parties. It is less formal than a trial, and evidentiary rules are frequently eased.
  • Conciliation
    Conciliation is a non-binding procedure in which the parties to a dispute are assisted by an impartial third party, in reaching a mutually satisfactory agreed settlement. The parties have the option of accepting or rejecting the suggestions of the conciliator. If both parties approve the conciliation settlement document, it will be final and binding on both parties.
  • Mediation
    Mediation is another way of arbitration, the person known as a mediator sits between the parties and assists them in negotiating and reaching a final decision. The mediator strives to make it easier for the parties to communicate openly so that they can reach a mutually agreeable resolution. The parties retain control of the outcome in mediation.
  • Negotiation
    Negotiation is a non-binding procedure in which the parties to a dispute communicate with each other without the involvement of a third party with the goal of reaching a negotiated settlement.
  • Lok Adalat
    Lok Adalat, or People's Court, is an informal environment that encourages talks in the presence of a judicial official. The decision of Lok Adalat is final and it is regarded as a civil court judgement that is binding on the parties to the dispute.

Importance of Alternative Dispute Resolution

In the last few decades, the pendency of cases in Indian Courts has increased. There are more than three crore cases are pending in the Supreme Court, High Courts, and Subordinate Courts. The Supreme Court has only 0.2 per cent of pending cases while the High Courts have 13.8 percent of pending cases and the most of all 86 percent of cases pending before the subordinate courts.

In the last decade, there is a hike of 8.6 percent in the pendency of cases in all courts of the country with the rise of 36 percent in the Supreme Court, 17 percent in the High Courts, and 7 percent in the Subordinate Courts.[i]

Alternative Dispute Resolution plays a very crucial role in providing justice to the aggrieved parties. Before this parties had to wait for years to get justice. But now with the Alternative Dispute Resolution excess to justice become very easy and cheap. The Alternative Dispute Resolution helps to provide equal justice and free legal aid to the people. This is a remedy to achieve Article 39A of the Directive Principle of the State Policy.[ii] Alternative Dispute Resolution (ADR) is the most often used strategy and can be successful in many cases. This endeavor is to reduce the pendency rate of cases in Indian courts.

Despite so many benefits the Alternative Dispute Resolution is not actively used to resolve the disputes. The main reason behind this is the lack of awareness. People from rural or backward areas are not aware of the laws of arbitration and their benefits. However, it is considered a part of litigation.

To match the need for time the Arbitration and Conciliation Act, 1996 has been amended three times so far in 2015, 2019, and 2021. In the latest amendment of 2021, the change has been made that if the court found any evidence of fraud and coercion related to the award of the arbitration the court can stay on the award.[iii] In spite of the amendments, there are still many issues that need improvement.

The object of the Alternative Dispute Resolution (ADR) is the settlement of the matters outside the court. For the more effective working of the Alternative Dispute Resolution, there is a need for a council where the parties can explicitly challenge the arbitrator if he has not fulfilled the necessary grounds. There should be different acts for arbitration, mediation, and conciliation.

The government needs to increase the arbitration and conciliation centers across India. Conduct many awareness projects in various areas of the country specifically in the rural areas. So that people become aware of the benefits of arbitration and consider it for the redressal of their disputes.

In subordinate courts, more of the pending cases are criminal. To reduce the pendency rate, the government needs to include criminal cases in arbitration.

Arbitration is a boon for the judiciary. India has millions of cases pending in the Supreme Court, and High courts, and more than these in the district or subordinate courts. Arbitration is the best way to resolve any dispute in an easy way it is a fast and cheap manner. In this parties have the option to present their terms and conditions and they choose the arbitrator or the mediator of their choice.

But with the rise of the Alternative Dispute Resolution, challenges relating to it restrain the easy growth and performance. As a result, parties consider litigation over alternative redressal. Hence, it is necessary to reflect on the issues and remove them by amending with better solutions.

  2. Constitution of India, 1950

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