Perhaps thirty years ago, the legal industry was one commonly associated with criminal proceedings or the resolving of complex disputes between large business tycoons. The very idea of litigation incurred images of lengthy court hearings, a king’s ransom of fees to pay, and professional grudges borne between those engaged in civil lawsuits. Now however, resolving legal issues, a field that once centred around traditional judges and courtroom setups, has evolved into what we today know to be Alternate Dispute Resolution (ADR).
At its very core, ADR is the process of resolving legal disputes without going to court. Usually achieved with the assistance of an impartial dispute resolution body, ADR helps minimise costs and avoid prolonged court decisions by allowing the parties involved to communicate and settle matters between themselves. With a variety of processes such as negotiation, conciliation, mediation, and arbitration, ADR is an effective method of private dispute settlement, that not only decreases stress associated with attending court trials, but also provides a more confidential setting for the two parties to negotiate terms and reach a decision that favours both sides.
Negotiation:
Being one of the most simple ways of alternate dispute resolution, negotiation involves communicating with the other party directly to reach an agreement. Be it face-to-face, through emails or letters, or over the phone, negotiation is one the quickest and cheapest methods to settle a dispute privately, while also being able to communicate your concerns to the other in a straightforward manner. Not only does this avoid the build-up of fees for lawyers hired for the case, but it also ensures both parties are able to reach a reasonable compromise on their own terms. However, when negotiations are unable to reach a decisive conclusion, solicitors may be hired to aid the progression of these.
Conciliation:
Conciliation involves a neutral conciliator, who helps the parties reach a solution by identifying where each party stands, and the issues they face. Conciliators play an active role throughout the process, guiding parties and even suggesting grounds for compromise and settlement. Parties can choose to meet face-to-face in front of the conciliator, or consult with the conciliator in private to convey their wishes. Moreover, since conciliation is not necessarily based on being rigidly compliant with the law, proposed settlements can focus on commercial and economical benefits for all the parties involved. This is beneficial to businesses and companies who intend to work together in the future, allowing them to avoid conflict while also setting the premise for further agreements and collaborations, that which a court hearing focusing only on the present dispute cannot do.
Mediation:
Mediation involves using a neutral and trained mediator, who looks for common ground between the two parties and explores the needs and wishes of each party, while maintaining confidentiality between them. The difference between a mediator and a conciliator lies in how active a role they play during the process. While conciliators openly discuss their views on how the dispute is to be settled, mediators serve as facilitators of the negotiation instead, so that parties come to an agreement themselves. Methods of mediation may include conducting a formal, mini-trial, in which both parties present their side to try and come to an agreement. Lately, many online services also offer mediation through the form of Online Dispute Resolution (ODR).
Arbitration:
Arbitration in India is governed by the Arbitration and Conciliation Act, 1996. Under this, parties voluntarily submit themselves to the judgement of a person other than a judge. Agreements to submit to arbitration are usually made in the form of a separate agreement, or as an arbitration clause in a contract between the parties. During this, parties follow a method similar to a court hearing, in which an arbitrator or a panel of arbitrators view any relevant documents, evaluate oral submissions at hearings, and listen to any witnesses procured by the parties. The date, time, and place of arbitration can be decided by the parties when consulting the arbitrator, thus offering a lot of flexibility to the proceedings, and allowing them to progress at the parties’ convenience.
Decisions made by the arbitrator are binding on all parties, and can be enforced through the courts, if necessary. However, although this decision is final, it can be challenged in the court on the grounds of serious irregularity during the proceedings, or on a point of law.
Arbitration has many advantages, from parties being able to hire experts in particular fields as arbitrators, proceedings being private and without publicity, faster judgments, and lesser costs. It is a good method of finding a compromise when parties want to follow a formal procedure, while still maintaining the benefits of an alternate dispute resolution, without court interference.
Altogether, Alternate Dispute Resolution has revolutionised the way we perceive and address conflicts, offering a pathway to resolve them effectively, efficiently, and privately. Allowing individuals and businesses to find balanced solutions that cater to their individual needs without the rigidity of courtroom litigation, ADR represents a shift towards a more accessible and collaborative form of justice, proving that fair resolutions can often be achieved outside the courtroom.
Aditi studied law as a high school student developing a strong foundation in legal principles. An avid reader with a passion for literature, Aditi has authored and published a book as well. She is now looking forward to pursuing a degree in law and building a career in the legal field.
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