Different Kinds of Alternative Dispute Resolution

0
357
Alternative Dispute Resolution

Alternative Dispute Resolution (hereinafter referred to as “ADR”)  is a term for describing process of resolving civil disputes in place of litigation and includes arbitration, mediation, conciliation, expert determination and early neutral evaluation by a third person.[1]. As the name suggest, it simply refers to an alternate way to settle conflicts which a person or corporate entity might encounter.

The National Alternative Dispute Resolution Advisory Council (“NADRAC”) of Australia has defined ADR as “an umbrella term for processes, other than judicial determination, in which an impartial person assists those in a dispute to resolve the issues between them.”In fact, ADR is increasingly referred to as ‘appropriate dispute resolution’, in recognition of the fact that such approaches are often not just an alternative to litigation, but may be the most optimum way to resolve a dispute.[2]

The statute in India which deals with Alternative Dispute Resolution is the Arbitration and Conciliation Act, 1996 (hereinafter referred to as “the Act”). It contains the following methods of ADR recognized by law:-

  • Arbitration;
  • Conciliation; and
  • Mediation

While the first two methods enlisted above find place in the name of the statute itself, with various provisions to govern and regulate the practice of the same given in the Act, Mediation is interestingly mentioned but once in the entire Act under Section 30(1) which reads –

“It is not incompatible with an arbitration agreement for an arbitral tribunal to encourage settlement of the dispute and, with the agreement of the parties, the arbitral tribunal may use mediation, conciliation or other procedures at any time during the arbitral proceedings to encourage settlement.”

In this case, Mediation is used as a way to urge the parties to reach a settlement agreeable to both parties during an arbitration proceeding. Hence, it is clear that while Mediation is still a recognized and lawful practice to reach a settlement to a dispute in India, it is Arbitration and Conciliation which are the more preferred methods.

The NADRAC (The National Alternative Dispute Resolution Advisory Council of Australia) has very prominently distinguished the processes of ADR into 4 kinds[3];

I. Facilitative Processes:

True to the word the third part in the dispute resolution process herein is not involved in settling the dispute between the parties but rather, he simply assists the parties thereto to identify the issues of contention, present the option available to reach a solution, and advise the parties in considering the alternatives available to them. This process would include negotiation, facilitation, conferencing and mediation[4].

II. Advisory Processes:

In this process the third party practitioner is to appraise the disputes and advise the parties as to the facts of the dispute or the law or even the possible and desirable outcomes in certain cases with methods on how to obtain them. Examples of this process are expert appraisal, case appraisal, case presentation, mini-trial and early neutral evaluation[5].

III. Determinative Processes:

Herein, the third party practitioner is more involved in the dispute and its settlement. They evaluate the dispute (which in this case may include adjudication) by hearing the formal evidence from the parties and then make a determination. Determinative processes include arbitration, expert determination and private judging.

IV. Hybrid Processes:

The fourth and most common process of ADR that is prevalent is a hybrid process. Again, as the word suggests, a hybrid process is a mix of two or sometimes, all three processes that are explained above. In this process the third part practitioner plays multiple roles. An example of this is when the practitioner facilitates discussions and provides advice based on the merits of the dispute between the parties. Such practice occurs in the course of a mediation and conciliation. In these processes, such as a mediation-arbitration, the practitioner first uses one process (mediation) and then a different one (arbitration)[6].

Aside from the various forms of ADR mentioned above, there are other different kinds of techniques adopted in India and worldwide which include mini-trials andthe LokAdalat system prevalent in the village and small towns of India.

Mini-trials[7] (miniature-trials) are an ADR method distinct from the methods listed previously. While the word trial gives an assumption that this method id adopted in criminal cases, miniature-trials are actually invoked when the top decision makers of a corporation (CEO, CFO, MD) are having a dispute and they present their respective case by having a negotiation process. The outcome od the mini-trial is not binding until mentioned otherwise.

LokAdalats on the other hand, are a form of ADR adopted by the rural areas where the dispute is decided with utmost expedition to arrive at a compromise or settlement on the basis of principles of justice, equity, fair play and other legal principles. It is considered to be a blend of all other forms of ADR and has existed in India for a long period of time. It has received statutory basis under the Legal Services Authorities Act, 1987 under Article 39-A of the Constitution of India which provides for free legal service and assistance to all the citizens of India in order to protect the rights of the economically weaker sections of society videLokAdalats. When the LokAdalat is not able to arrive at a compromise or settlement, the record of the case is returned to the Court, which initially referred the case to the LokAdalats[8].

Another method of ADR that exists in villages is NyayPanchayats. The administration in these cases is carried out by a Panchayat headed by village headman that decides petty civil, criminal and revenue cases. The respectable members of the village community form the Panchayat.

It is hence apparent from the above that there are a number of different types and kind of Alternative Dispute mechanisms which each have a different approach, purpose and method of implementation. While the foundation of solving disputes in a way to avoid the formal justice system is common, each of these methods and processes enumerated above solve their own purpose, i.e. they are each used in a different kind of law depending on what is required for the dispute arising therein. Therefore, arbitrations are usually used in more formal settings between two corporate entities where the bone of contention is usually a fiscal matter whereas conciliation is generally involved in matters involving family or domestic disputes.

Thus, while there is a variety of ADR to consider while trying to solve a dispute, it is important to keep in mind which mechanism is best suited for the issue at hand without giving importance to the mechanism which takes up the least resources and time or the method which has the highest success rate which often depends from case to case and situation to situation.


References:

[1]https://astrealegal.com/alternative-dispute-resolution-in-india/ visited on 03/06/2017 at 14:16 p.m.

[2]National Alternative Dispute Resolution Advisory Council, Dispute Resolution Terms (2003)

[3]Ibid

[4]Ibid

[5]Supra at 2

[6]Ibid

[7]adrresources.com/adr-methods/mini-trial#sthash.TwoLWPCq.dpufvisited on 09/06/2017 at 17:01p.m

[8]https://www.lawctopus.com/academike/lok-adalats/visited on 09/06/2017 at 17:16 p.m