ADR: A Cost-Effective and Efficient Solution to Legal Disputes

Arbitration is no longer an ‘alternative’, but the preferred method of seeking commercial justice. - Chief Justice of India Dr. DY Chandrachud

Alternative Dispute Resolution Mechanisms are the various ways parties to a dispute can resolve their disputes in a less stressful, confidential and informal manner. These processes generally include the parties to a dispute to adopt the process of mediation or conciliation or neutral evaluation and these are cost effective and efficient than traditional court room proceedings. While they provide a cost effective and efficient solution it is upon the parties' choice to adopt such means to resolve their disputes. The concept of Alternative Dispute Resolution is supported by the Constitution of India through the Articles - 14, 21 and the Directive Principles of State Policy in Article - 39 A. These Articles give the parties to a dispute the fundamental right to access Justice and Equality through the pursuit of their personal liberty to choice of proceeding to resolve such dispute.

In a family where there is a difference of opinion between two minds and thoughts conflicts are bound to arise such conflicts can be either - domestic disputes, restitution of conjugal rights, breakdown of marriage, testamentary and intestate property issues or child care and custody issues. In India, the concept of ADR is not new but has been prevalent since the past. In the ancient times the the either an elder of the family or a group of professional unbiased knowledgeable traders, craftsmen or a person chosen by the people of a village or a Adhikrita (Court appointed by Kings) or a Sasita (Kings Court) which was presided by the King himself can be seen to be prevalent. During the British Rule, the Bengal Resolution Act, 1772 and the Bengal Resolution Act, 1781 were the first legislation that formed a binding settlement with mutual consent of the parties. Other legislation as that of the Regulation XV, 1795 (for Madras) and the Regulation XXI, 1803 (for the territory of Nawab Wazir) formed a basis of arbitration where matters relating to basic cases of debts, partnership accounts, non-performance of contract and various others were adjudicated. The Indian Arbitration Act, 1899 was introduced as the first Indian legislation regarding ADR which provided that the matters that would be settled by agreement between parties were not required by courts for supervising while every other proceeding was left under the purview of Schedule 2 of the Code of Civil Procedure, 1908. In the later stage it can also be seen that the Arbitration Act, 1940 which provided a time consuming, complicated and expensive proceeding was repealed by the Arbitration and Conciliation Act, 1996.

The process of Alternative Dispute Resolution can be divided into two types - a) Adjudicative and b) Non-adjudicative, while both the processes include the presence of a third party there is one distinctive difference where in the first the third party imposes a decision on the parties while on the following the third party leads both the parties as a supporter of both to reach a consensus.

The mechanisms of alternative dispute resolution consists of arbitration, mediation, conciliation negotiation and Lok Adalat. While only the Lok Adalat is non private proceeding. In Arbitration the private process of resolving the dispute between parties being adjudicated by a third-party who is a scholar and expert in the subject matter of the dispute, regarded as an arbitrator. It is regarded as one of the best procedures for the adjudication of dispute as the parties can opt for such person of their own choice and it is a cost effective and convenient method to resolve a dispute. The arbitrator shall provide an arbitral award at the end of such proceedings but such awards are non-appeal-able in the Court proceedings. While in Mediation follows the non-adjudicative process where the mediator, a third party to the dispute, holds the role not to resolve the issue but find creative problem solving to enable the parties to reach to their agreements. This process to resolve a dispute in a matrimonial dispute can be much used as in such proceedings the relationship between parties are not ruptured and the preservation of family can be maintained. As such the role a mediator becomes of the utmost importance as the mediator in such cases should take time in understanding the nuances of the dispute to facilitate communication and collaboration from the parties. The process of conciliation is a non-adjudicatory process and is a part cantered negotiation and consent of both parties to the dispute is mandatory. The agreement reached by such parties through the process of conciliation is enforceable under s.74 of the Arbitration and Conciliation Act, 1996.

The Concept of Alternative Dispute Resolution is evolving day by day especially in a country like India, it has been witnessed through a report published by the Vidhi Centre for Legal Policy in 2016 where around 46000 cases were refereed to mediation by the Court out of which 41,503 were family dispute cases.

In a matrimonial dispute it is always a standing principle of the Court and the Law that the parties to the dispute forms a family and in course proceedings may result in the rupture of such family and as such preservation of families is of high priority to the court and to the system of ADR. The mechanisms in place from a shield of protection against any outside influence which may result in the rupture of the bond between parties. In a matrimonial dispute in cases where either the husband or the wife files a petition under s.9 of the Hindu Marriage Act, 1995 seeks to cohabit the conjugal relationship between them as such any difference of opinions or that of thoughts can be easily resolved through the application of the processes of alternative dispute resolution. In this proactive and more combative society where difference of opinions and beliefs may spark the fire of separation it is always preferable to first amend such differences through a procedure that doesn't publicizes nor violates private matters like that in a traditional open court but rather can be private by application of the processes of alternative dispute resolution mechanisms.