ROLE OF ALTERNATE DISPUTE FORUMS

ROLE OF ALTERNATE DISPUTE FORUMS IN SPEEDY DISPOSAL OF CASES

BY ADVOCATE LIDA JOÃO – MEMBER OF TALUKA LEGAL SERVICES

COMMITTEE,SOUTH.

The Indian Constitution  guaranteed a social order built on the foundation of the equality principle  i.e. equal access to justice .It is the function of the Government to provide and maintain an adequate and effective machinery both within and outside the formal judicial process , to which all citizens have access on an equal basis for the impartial disputes.

Conflict is a fact of life. It is not good or bad.  What is important is how we manage or handle it. Negotiation techniques are often central to resolving conflict and as a basic technique these have been around for many thousands of years wherein during the vedic period and thereafter justice was being administered by the elders of the community of villages based on justice, equity and good conscience called Nyaya Panchayats

As one of the measures to facilitate speedy justice, the ADR was introduced through enactment of various statutes.There are two alternatives for reducing the backlog of cases- one is cleaning  the existing system of litigation in courts and the other is devising alternative methods which are free from the rigours of procedural law.It is a consensual method of dispute resolution outside the conventional litigation process usually adhered to voluntarily by the parties. Avoidance of vexation of cases, expense and promotion of ideals of speedy justice is the motto.

To quote Mahatma Gandhi : “I had learnt the true practice of law. I had learnt to find out the better side of human nature, and to enter men’s hearts. I realized that the true function of a lawyer was to unite parties given as under. The lesson was so indelibly burnt unto me that the large part of my time ,during the twenty years of my practice as a lawyer, was occupied in bringing about private compromises of hundreds of cases. I lost nothing, thereby not even money, certainly not my soul.”

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Alternative Dispute Resolution (ADR) refers to a variety of streamlined resolution techniques designed to resolve issues in controversy more efficiently when the normal negotiation process fails. It  is an alternative to the Formal Legal System and  to litigation. It is an attempt to devise machinery which is capable of providing an alternative to the

conventional methods of resolving disputes and offers to resolve matters of litigants, whether in business or otherwise, who are not able to start any process of negotiation and reach any settlement and has started gaining ground and first started as a quest to find solutions to the perplexing problem of the ever increasing burden on the courts. It was an attempt made by the legislators and judiciary alike to achieve the “Constitutional goal” of achieving

Complete Justice. Alternative Dispute Resolution in India was founded on the Constitutional basis of Articles 14 and 21 which deal with Equality before Law and Right to life and personal liberty respectively. ADR also tries to achieve the Directive Principle of State Policy relating to Equal justice and Free Legal Aid as laid down under Article 39-A  Chapter 1V Directive Principlesof the Constitution which strengthens the Indian democracy which is based on the principles of equality, justice, human dignity and fraternity. The rule of law without legal aid to the poor is unrealistic.

There are 3 stages of ADR- pre-litigation, post litigation and mediation. The major disposal of cases are in the post litigation stage which helps in reducing the pendency of cases. Cases referred  could range from land acquisition to financial disputes under Negotiable instruments Act, bank recovery cases, sales tax, income tax, motor accident claims, disputes over waterbills, telecommunications, matrimonial disputes, partition suits, clinical and medical negligence, environmental issues, pollution claims, IT, Maritine and Shipping ,Pensions, product liabilities, railway disputes, shareholders disputes, and so on.

The Acts which deal with Alternative Dispute Resolution are Arbitration and Conciliation Act, 1996 and the Legal Services Authorities Act, 1987. Section 89 of the Civil Procedure Code, 1908 makes it possible for Arbitration proceedings to take place in accordance with the Acts stated above.

ADR is less expensive , flexible, less time consuming, convenient, free from technicalities as in the case of conducting cases in law Courts, parties choose their own rules for dispute settlement  and  the parties are free to discuss their difference of opinion without any fear of disclosure of this fact before any law Courts. The last but not the least is the fact that parties have the feeling that there is no losing or winning feeling amongst them but at the same time they are have the feeling that their grievance is redressed and the relationship between the parties is restored.

Section 30 of the Arbitration and Conciliation Act, 1996 encourages arbitrators, with the agreement of the parties, to use mediation, conciliation or other procedures at any time during the arbitration proceedings to encourage settlement. The Civil Procedure Code (Amendment) Act, 1999 – Section 89  is designed to enable the courts to bring about a settlement of dispute outside the Court, known as court-ordered or court- annexed ADRs are statutory alternatives to litigation for settlement of disputes and are legally enforceable It is  made obligatory for the Court to refer the dispute after issues are framed for settlement with the concurrence of the parties either by way of:

Arbitration: Arbitration is the process of hearing and determining of a dispute between parties by persons chosen or agreed to by them. The object of arbitration is to obtain the fair resolution of disputes by an impartial tribunal without unnecessary delay and expense.

Conciliation: Conciliation is the process of facilitating an amicable settlement between the parties, there is no determination of a dispute. There need not be a prior agreement and it cannot be forced on a party not intending for conciliation. The proceedings relating to Conciliation are dealt under sections 61 to 81 of Arbitration and Conciliation Act, 1996

Judicial settlement including settlement through Lok Adalat: The Legal Services Authorities Act, 1987 brought about the establishment of Lok Adalat System for settlement of disputes cheaply and expeditiously and also in the spirit of compromise by give and take formula.and also to ensure  that the operation of the legal system promotes justice on the basis of equal opportunity. There are Lok Adalats held in regular courts as well as mobile Lok Adalats at the Mamlatdar court levels.Very recently the National Level Mega Lok Adalats have been a huge success with the people.

Mediation: Mediation aims to assist two (or more) disputants in reaching an agreement. The parties themselves determine the conditions of any settlement reached— rather than accepting something imposed by a third party. The disputes  could involve as parties states, organizations, communities, individuals or other representatives with a vested interest in the outcome. Mediators use appropriate techniques and or skills to open and or improve dialogue between disputants, aiming to help the parties reach an agreement with concrete effects ..The instant case being that of former MissWorld Yukta Mookhey and her ex- husband Prince Tuli  who visited the courts regularly for 2 years , till the Hon’ble High Court referred their case for mediation and just 2 months into mediation the case was settled are a few examples to emulate.

Where the parties fail to get their disputes settled through any of the Alternative Dispute Resolution methods, the suit would come back to proceed further in the Court it was filed and also OrderX rule 1A also stresses on alternative forums.

The Malimath Committee undertook a comprehensive review of the working of the court system, particularly all aspects of arrears and Law’s delay and made various useful recommendations for reducing litigation and making justice readily accessible to the people at the minimum cost of time and money. It underlined the need for alternative dispute resolution mechanism such as mediation, conciliation, arbitration, Lok Adalats etc. as a viable alternative to the conventional court litigation.
Chief Justice Bhagwati quoted in  one of his speeches – ‘ Our judicial system is creeking under the weight of arrears.Arrears cause delay and delay means negating the accessibility of justice in true terms to the common man.  It is a very practical suggestion, which if implemented, can reduce the work load  of Civil Courts by half.’  It is the bounden duty of the Bar to take this onerous task of implementing ADR on itself so as to get matters settled without going into the labyrinth of judicial procedures and technicalities. The Bar should be supported by the Bench in this herculean task so that no one is denied justice because of delay. It is also necessary to take recourse to ADR as soon as the dispute arises so as to confer maximum advantage to the parties and motivating the litigants in this direction would be an exercise to be undertaken.  The words of John F. Kennedy ring  in my ears –    “Let us never negotiate out of fear but let us never fear to negotiate.”The ADR forums are very much essential for the peace, prosperity  and overall  development of the society as a whole. Lastly,  I end with  the verse of Edgar Allen Poe – “Ours alone can never prevail, To reach the distant coast; The breath of Heaven must swell the coast, Or all the toil is  lost.”