Importance given to ADR in Indian Context can be gauged from the fact that civil procedure Code, 1908 has laid down that the cases must be encouraged to go for ADR.10 After due deliberation and several trials Arbitration and Mediation emerged as the most common modes of ADR, though Conciliation and Negotiation also comprise of ADR, they are however seldom used.
ARBITRATION AS A MODE OF ALTERNATE DISPUTE RESOLUTION
Arbitration is a method of dispute resolution involving one or more neutral third parties who are usually agreed to by the disputing parties and whose decision is binding 11.
Arbitration at its core is a form of dispute resolution, which comprises of a private judicial determination of a dispute by an on dependent third party. It is considered as a private dispute redressed process which is widely encouraged for promoting twin motives of overcoming high pendency of cases and reducing the cost of litigation. The prominent feature of the system is that, instead of filing a case in court, the parties can refer their case to an arbitral tribunal whose decision is binding and is termed as an award.
MEDIATION AS MODE OF ALTERNATE DISPUTE RESOLUTION
Mediation is basically negotiations carried out with the assistance of a neutral third party; however recommendations of a mediator are not binding. In true sense of the term mediation is a method of nonbinding dispute resolution involving a neutral third party, who tries to assist the disputing parties to reach a mutually agreeable solution.12
NEGOTIATION AS MEANS OF ALTERNATE DISPUTE RESOLUTION
Negotiation is the most common mode by which parties resolve their disputes without ever coming to the notice of third parties. Everyday several disputes are being resolved through negotiations.
Negotiation consists of a mutual discussion by the parties of their dispute or difference, with a view to find out as to how to their best can they settle their disputes & differences.
In true sense of the term negotiation entails bargaining, which is some what similar to an agreement between disputing parties.
However on the other hand where the parties agree on mutually acceptable terms, then in such situation the dispute shall be deemed to have been resolved.
LOK- ADALAT AS A MEANS FOR ALTERNATE DISPUTE RESOLUTION
The Lok-adalat is an old form of adjudicating system that prevailed in ancient India and its validity has not been taken away even in modern days, the word Lok-Adalat means people’s Court, this system is based upon the Gandhi an Principles. It is one of the components of ADR Systems, as the Indian courts are over burdened with backlog of cases and regular courts take years together to settle even petty cases, Lok-Adalat therefore provides alternative resolution or device for expeditious and inexpensive justice. The Lok-Adalat system was introduced in India at the beginning of the 1980’s starting from the state of Gujarat, the Lok Adalat System evolved as a means of alternate Dispute resolution.
Though meant to settle disputes at grass root level, in traditional manner, yet it became popular as an ADR mechanism for improving access to justice and for alleviating institutional burden of regular law courts.
In essence Lok-adalats provide an efficient, cost effective and assessable form of equitable justice it is in fact in total contrast to inaccessible and inefficient dispensation of justice by formal law courts.
CASE LAWS WHERE JUDICIARY HAS RULED IN FAVOUR OF ALTERNATE DISPUTE RESOLUTION IN E. VENKATAKRISHNA VS INDIAN OILCORPORATION LTD.
It was held that, when ever there is an arbitration clause in a contract, aggrieved parties must have recourse to the provisions of the Arbitration Act and that being a complete code in itself, parties cannot approach High Court, with a petition under Art- 226.
IN PT THOMAS VS. THOMAS JOB
It was held, that the experiment of Lok-Adalat as an alternate mode of dispute settlement has come to be accepted in India as a viable, economic, efficient and informal one.
IN OIL AND NATURAL GAS COMMISSION VS. CCE
In one of the orders passed in this judgment it was recorded that the cabinet secretary has issued instructions to all departments of Government of India as well as PSU’S that all disputes “regardless of type, should be resolved amicably by mutual consultation or through good offices of empowered agencies of the government through arbitration and recourse to litigation should be eliminated.
IN BHASHEER VS. KERALA STATE HOUSING BOARD
Hon’ble Justice K.Padmanabhan Nair. J opined that, it must be ensured that in developing countries most of the cases are resolved by ADR mechanism of Arbitration, Conciliation and Mediation.
IN SALEM ADVOCATE BAR ASSOCIATION TAMIL NADU VS. UOI
It was held that, keeping in mind the law delays and the limited number of judges which are available, it has now become imperative that resort should be had to ADR, with a view to bring an end to litigation at an early date . In this very case it was highlighted, that ADR mechanism contemplated by Section 85 of CPC20 is arbitration, conciliation, judicial settlement including settlement through Lok Adalat and mediation.
IN DECO MICA LTD VS UOI
Here in it was held that ADR is inevitable in one form or the another, in view of global unquestionable phenomenon because court of law some times becomes suit for life, litigation in the present set up and mechanism has become expensive and time consuming and dispensation of justice has become slow. It is reported that out of 192 Countries,which are members of UN, 133 Countries have successfully implemented ADR in one form or the other, with encouraging and rewarding success.
The ADR system thus provides the parties to a dispute to opportunity to resolve their dispute outside the court. Parties who do not wish to go through the lengthy and formal process of court proceedings may opt for this method of resolving disputes. It is advantages on many levels. Nevertheless ADR is gaining extreme popularity as it does relieve the courts from the cumbersome litigations, and taking in to account its various advantages .The law and legal system should appeal the reasons of people in a common sense observation of facts and not in a way of legal principle . It is this spirit that has led to the evolution of ADR Mechanism for the dispensation of justice with efficacy and steadfastness.
The efficiency of Arbitration, Conciliation, Lok- Adalats, Mediation, Negotiation as a means of providing quicker, faster, cheaper, efficient and some what agreeable settlement, in a private atmosphere, without publicizing the issue has made the Alternate Dispute Resolution system a hot favorite amongst both litigants as well as corporate, The popularity and acceptability of the system is quite evident from the fact that, now even courts of law are seriously encouraging this concept.
The growing burst in the establishment of a number of mediation of conciliation centers at various High Courts and Lower Courts stands as a testimony to the success of this overtly popular phenomenon.
Thus it would not be wrong to summarize that “In true sense of the term Alternate Dispute Resolution has emerged as a life saving pill for our ailing judicial system, ADR by dealing with simple cases has in fact spared to the regular courts, some extra time to deal with more technical and complex judicial matters, and by doing so it has in fact been quite successful in achieving its desired purpose of relieving the regular courts of their growing backlog of cases.