Alternative Dispute Resolution in India
Alternative Dispute Resolution in India-
By- Abhavya Rabra 2nd year Jagran Lakecity University, Bhopal
Alternative Dispute Resolution (ADR) is a collection of processes used for the purpose of resolving conflict or disputes informally and confidentially. ADR provides alternatives to traditional processes, such as grievances and complaints; however, it does not displace those traditional processes. The ADR Office is a resource available to all CDC and ATSDR employees. The ADR Office is a resource when you need advice about how to deal directly with a concern, you are uncertain about taking a problem through other established channels, are not sure who to talk with about a problem or concern, want an informal, non escalating approach, need a fresh, impartial perspective, want to discuss strategies or possible options for resolving a concern and if you want to maintain the greatest possible flexibility in how to approach a concern or simply need a sounding board.
ADR is generally voluntary. However, at CDC and ATSDR managers and supervisors are strongly encouraged to participate in ADR processes when employees choose this mechanism for resolution of work place disputes. ADR empowers and enables the participating parties to develop and seek mutually acceptable solutions, which they choose to meet their needs. Generally, ADR uses a neutral third party to help the parties communicate, develop ideas and resolve the dispute.
Some reasons for using ADR are that it is faster, less costly, easier, less formality involved, less confrontational or adversarial, it encourages creativity and searching for practical solutions, it avoids the unpredictability involved when decisions are rendered as a result of the traditional dispute resolution mechanisms. The ADR process usually results in improved communications between disputing parties and is therefore better for ongoing relationships, increases workplace morale and can make you feel better about coming to work, results in participant satisfaction, solutions tend to be durable or long lasting since they have the “buy in” of all parties involved, publicity is avoided and most importantly, the parties retain control of the outcome. YOU HAVE NOTHING TO LOSE by using ADR since all statutory entitlements remain in tact.
Advantage of Alternate Dispute Resolution:
· It is less expensive.
· It is less time consuming.
· It is free from technicalities as in the case of conducting cases in law Courts.
· 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 are having the feeling that there is no losing or winning feeling among the parties by at the same time they are having the feeling that their grievance is redressed and the relationship between the parties is restored.
Legislative recognition of Alternative Dispute Redressal
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.
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.
Further still, the Civil Procedure Code (Amendment) Act, 1999 carries Section 89 which is designed to enable the courts to bring about a settlement of dispute outside the Court. As and when the Amendment comes to be enforced, the four methods listed in the section and known as court-ordered or court- annexed ADRs would become statutory alternatives to litigation for settlement of disputes and would be legally enforceable
It is now 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:
· Judicial settlement including settlement through Lok Adalat, or
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.
Justice Committee Report (1989-90)
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 o time and money. It underlined the need for alternative dispute resolution mechanism such as mediation, conciliation, arbitration, Lok Adalat’s etc. as a viable alternative to the conventional court litigation.
Contacts with the ADR Office are strictly confidential.
The CDC and ATSDR has a team of professionals with experience managing conflict, whether it occurs in the work place between organisations, or with other customers. The Alternative Dispute Resolution (ADR) team can help with problem solving or building communication skills to enhance individual or team performance.
Confidentiality is an essential feature of ADR processes. Confidentiality is generally maintaining private and secret: all discussions; the contents of documents disclosed that will not be used as evidence; and information provided during the ADR process. Maintaining confidentiality encourages meaningful participation and can promote good outcomes. Respecting confidentiality encourages a full and frank discussion between the parties about the issues in dispute and this can assist in the resolution or narrowing of the issues.
ARE ADR PROCESSES HELD IN PUBLIC OR IN PRIVATE?
Unlike most hearings at the AAT, which are open to the public, ADR processes are held in private—only the parties and their representatives usually attend with the Conference Registrar.
In the course of an ADR process (particularly conciliations and mediations) the Conference Registrar may discuss matters in a private session with the parties. What is said in the course of those private sessions is kept confidential. The Conference Registrar has an ethical obligation not to disclose information obtained in the course of a private session unless clearly instructed to do so by a party or where disclosure is otherwise required by law.
IS WHAT IS SAID OR DONE, AT AN ADR PROCESS, CONFIDENTIAL?
Matters discussed during an ADR process vary widely but can include proposals and options to reach a settlement of the application; discussion of circumstances that have given rise to the application; calculations of possible entitlements; and case management issues to help prepare the application for hearing, for example exchange of names of treating medical practitioners.
What is said or done in the course of an ADR process at the AAT cannot be admitted as evidence in any hearing before the AAT (unless the parties agree) or in any other court or tribunal: s 34E of the AAT Act. For example, the terms of any settlement offer or concession made by either party in an ADR process would not be reported or admitted as evidence in a subsequent hearing and to do so would be considered as contempt and a breach of trust.
Evidence lodged by a party with the AAT that is discussed in the course of an ADR process is treated differently. Evidence (such as witness statements, medical reports, video surveillance footage and reports) forms part of the AAT file and is not treated confidentially simply because it was discussed at an ADR process. The parties may rely on that evidence at a hearing without seeking the agreement of the other party or parties.
Any written report provided to the parties following a case appraisal or neutral evaluation may be admitted into evidence during a hearing unless a party objects.
Information about procedural matters discussed at an ADR process, including any directions that are made or undertakings to do things, will be recorded and communicated within the AAT as part of our case management processes.
Where an application is settled at or following an ADR process, the AAT may make a decision in accordance with terms of agreement lodged by the parties: see section 34D and 42C of the AAT Act. The AAT’s decision may be made available to a person who was not a party to the decision on request unless the decision is subject to a confidentiality order under s 35 of the AAT Act or another legislative requirement for confidentiality applies.
DISCLOSURE TO THIRD PARTIES
The AAT expects that parties will deal sensitively with confidential information disclosed to them in the course of an ADR process.
While the AAT Act does not specifically prohibit a party from disclosing to third parties anything said or done in the course of an ADR process, parties should be aware that there may be limitations on disclosing information obtained in AAT proceedings.
· Information cannot be disclosed if it is subject to a confidentiality order under s 35 of the AAT Act or another legislative requirement for confidentiality applies.
· Duties of confidentiality may arise in the context of someone receiving information which they know, or should know, is confidential. Parties may be able to pursue remedies for breach of confidence in relation to information received in an ADR process, if the information was communicated in circumstances where there was an obligation of confidence.
· A party that obtains a document provided under compulsion in an AAT proceeding must not use the document for any purpose other than that for which it was given unless:
o the document was received in evidence by the AAT in relation to the proceeding and the confidentiality of the document is not protected by an order under s 35 of the AAT Act or by another statutory provision; or
o the AAT gives the party leave to use the document for another purpose.
o This implied undertaking applies to documents lodged under s 37 of the AAT Act, documents lodged pursuant to a direction given by the AAT (for example, expert reports or witness statements) and documents produced in response to a summons issued by the AAT.
· Mediation is an informal process for helping people who have a dispute to sort it out for themselves without going to court.
· A mediator is a neutral third person who encourages those in the dispute to talk to each other about the issues. The mediator is not an advice-giver or decision-maker. The parties examine the real problems, large or small. They then create and agree upon an outcome that meets their needs and addresses their concerns.
· Now, worldwide mediation settlement is a voluntary and informal process of resolution of disputes. It is a simple, voluntary, party centred and structured negotiation process, where a neutral third party assists the parties in amicably resolving their disputes by using specified communication and negotiation techniques. Mediation is a process where it is controlled by the parties themselves. The mediator only acts as a facilitator in helping the parties to reach a negotiated settlement of their dispute. The mediator makes no decisions and does not impose his view of what a fair settlement should be.48
· In the mediation process, each side meets with a experienced neutral mediator. The session begins with each side describing the problem and the resolution they desire – from their point of view. Once each sides’ respective positions are aired, the mediator then separates them into private rooms, beginning a process of “Caucus Meeting” and thereafter “joint meetings with the parties”. The end product is the agreement of both the sides. The mediator has no power to dictate his decision over the party. There is a win – win situation in the mediation.
· The chief advantages of the mediation are49: -
1. The agreement which is that of the parties themselves;
2. The dispute is quickly resolved without great stress and expenditure;
3. The relationship between the parties are preserved; and
4. The confidentiality is maintained.
Arbitration, a form of alternative dispute resolution (ADR), is a technique for the resolution of disputes outside the courts, where the parties to a dispute refer it to one or more persons – arbitrators, by whose decision they agree to be bound. It is a resolution technique in which a third party reviews the evidence in the case and imposes a decision that is legally binding for both sides and enforceable. There are limited rights of review and appeal of Arbitration awards. Arbitration is not the same as judicial proceedings and Mediation.
Arbitration can be either voluntary or mandatory. Of course, mandatory Arbitration can only come from s statute or from a contract that is voluntarily entered into, where the parties agree to hold all existing or future disputes to arbitration, without necessarily knowing, specifically, what disputes will ever occur.
The advantages of Arbitration can be summarised as follows: -
a) It is often faster than litigation in Court.
b) It can be cheaper and more flexible for businesses.
c) Arbitral proceedings and an arbitral award are generally non- public, and can be made confidential.
d) In arbitral proceedings the language of arbitration may be chosen, whereas in judicial proceedings the official language of the competent Court will be automatically applied.
e) There are very limited avenues for appeal of an arbitral award.
f) When the subject matter of the dispute is highly technical, arbitrators with an appropriate degree of expertise can be appointed as one cannot choose judge in litigation.
However, there are some disadvantages of the Arbitration, which may be summarised as follows: -
a) Arbitrator may be subject to pressures from the powerful parties.
b) If the Arbitration is mandatory and binding, the parties waive their rights to access the Courts.
c) In some arbitration agreements, the parties are required to pay for the arbitrators, which add an additional cost, especially in small consumer disputes.
d) There are very limited avenues for appeal, which means that an erroneous decision cannot be easily overturned.
e) Although usually thought to be speedier, when there are multiple arbitrators on the penal, juggling their schedules for hearing dates in long cases can lead to delays.
f) Arbitrationawardsthemselvesarenotdirectlyenforceable.Aparty seeking to enforce arbitration award must resort to judicial remedies.
In view of provisions of Section 89 of the Civil Procedure Code, if the matter is referred to the Arbitration then the provisions of the Arbitration and Conciliation Act, 1996 will govern the case.
Conciliation is an alternative dispute resolution process whereby the parties to a dispute use a conciliator, who meets with the parties separately in order to resolve their differences. They do this by lowering tensions, improving communications, interpreting issues, providing technical assistance, exploring potential solutions and bring about a negotiated settlement. It differs from Arbitration in that.
Conciliation is a voluntary proceeding, where the parties involved are free to agree and attempt to resolve their dispute by conciliation. The process is flexible, allowing parties to define the time, structure and content of the conciliation proceedings. These proceedings are rarely public. They are interest-based, as the conciliator will when proposing a settlement, not only take into account the parties' legal positions, but also their; commercial, financial and /or personal interests.44 The terms conciliation and mediation are interchangeable in the Indian context. Conciliation is a voluntary process whereby the conciliator, a trained and qualified neutral, facilitates negotiations between disputing parties and assists them in understanding their conflicts at issue and their interests in order to arrive at a mutually acceptable agreement. Conciliation involves discussions among the parties and the conciliator with an aim to explore sustainable and equitable resolutions by targeting the existent issues involved in the dispute and creating options for a settlement that are acceptable to all parties. The conciliator does not decide for the parties, but strives to support them in generating options in order to find a solution that is compatible to both parties. The process is risk free and not binding on the parties till they arrive at and sign the agreement. Once a solution is reached between the disputing parties before a conciliator, the agreement had the effect of an arbitration award and is legally tenable in any court in the country45.
Most commercial disputes, in which it is not essential that there should be a binding and enforceable decision, are amenable to conciliation. Conciliation may be particularly suitable where the parties in dispute wish to safeguard and maintain their commercial relationships.
A conciliator is not expected to act, after the conciliation proceedings are over, as an arbitrator unless the parties expressly agree that the conciliator can act as arbitrator. Similarly, the conciliation proceedings are confidential in nature. Rules of Conciliation of most of the international institutions provide that the parties shall not rely on or introduce as evidence in arbitral or judicial proceedings, (a) the views expressed or suggestions made for a possible settlement during the conciliation proceedings; (b) admissions made by any party during the course of the conciliation proceedings; (c) proposals made by the conciliator for the consideration of the parties; (d) the fact that any party had indicated its willingness to accept a proposal for settlement made by the conciliator; and that the conciliator shall not be produced or presented as a witness in any such arbitral or judicial proceedings.
Conciliation has received statutory recognition as it has been proved useful that before referring the dispute to the civil court or industrial court or family court etc, efforts to concile between the parties should be made. It is similar to the American concept of court-annexed mediation. However without structured procedure & statutory sanction, it was not possible for conciliation to achieve popularity in the countries like USA & also in other economically advanced countries
Section 89 of the Civil Procedure Code also refers to the Judicial Settlement as one of the mode of alternative dispute resolution. Of course, there are no specified rules framed so far for such settlement. However, the term Judicial Settlement is defined in Section 89 of the Code. Of course, it has been provided therein that when there is a Judicial Settlement the provisions of the Legal Services Authorities Act, 1987 will apply. It means that in a Judicial Settlement the concerned Judge tries to settle the dispute between the parties amicably. If at the instance of judiciary any amicable settlement is resorted to and arrived at in the given case then such settlement will be deemed to be decree within the meaning of the Legal Services Authorities Act, 1987. Section 21 of the Legal Services Authorities Act, 1987 provides that every award of the Lok Adalat shall be deemed to be a decree of the Civil Court.
There are no written guidelines prescribed in India as to judicial settlement. But in America, ethics requiring judicial settlement has been enumerated by Goldschmidt and Milford which are as under:
JUDICIAL SETTLEMENT GUIDELINES50
The following are guidelines for judicial settlement ethics:
1. Separation of Functions:
Where feasible, the judicial functions in the settlement and trial phase of a case should be performed by separate judges.
2. Impartiality and Disqualification:
A judge presiding over a settlement conference is performing judicial functions and, as such, the applicable provisions of the code of judicial conduct, particularly the disqualification rules, should apply in the settlement context.
3. Conference Management:
Judges should encourage and seek to facilitate settlement in a prompt, efficient, and fair manner. They should not, however, take unreasonable measures that are likely under normal circumstances to cause parties, attorneys, or other representatives of litigants to feel coerced in the process. The judge should take responsibility in settlement conferences.
4. Setting Ground Rules on Issues Such as Confidentiality, Disclosure and Ex Parte Communications:
In settlement conferences, judges should establish ground rules at the onset, either orallyor in writing, informing parties and their attorneys of the procedures that will be followed. The rules should include ground rules governing issues such as confidentiality, disclosure of facts and positions during and after conferences, and ex parte communications.
5. Focusing the Discussions:
A judge should use settlement techniques that are both effective and fair, and be mindful of the need to maintain impartiality in appearance and in fact.
6. Guiding or Influencing the Settlement:
The judge should guide and supervise the settlement process to ensure its fundamental fairness. In seeking to resolve disputes, a judge in settlement discussions should not sacrifice justice for expediency.
7. Sanctions or Other Penalties Against Settlement Conference Participants:
A judge should not arbitrarily impose sanction or other punitive measures to coerce or penalize litigants and their attorneys in the settlement process.
The concept that is gaining popularity is that of Lok Adalats or people’s courts as established by the government to settle disputes through conciliation and compromise. It is a judicial institution and a dispute settlement agency developed by the people themselves for social justice based on settlement or compromise reached through systematic negotiations. The first Lok Adalats was held in Una aim the Junagadh district of Gujarat State as far back as 1982. Lok Adalats accept even cases pending in the regular courts within their jurisdiction.
Section 89 of the Civil Procedure Code also provides as to referring the pending Civil disputes to the Lok Adalat. When the matter is referred to the Lok Adalat then the provisions of the Legal Services Authorities Act, 1987 will apply. So far as the holding of Lok Adalat is concerned, Section 19 of the Legal Services Authorities Act, 1987
A Lok Adalat shall have jurisdiction to determine and to arrive at a compromise or settlement between the parties to a dispute in respect of -
(i) any case pending before it; or
(ii) any matter which is falling within the jurisdiction of, and is not brought before any court for which the Lok Adalat is organised.
The procedures and techniques discussed above are the most commonly employed methods of ADR. Negotiation plays an important role in each method, either primarily or secondarily. However, there are countless other ADR methods, many of which modify or combine the above methods. The process has been criticised as a waste of time by some legal observers who believe that the same time could be spent pursuing the claims in civil court, where negotiation also plays a prominent role and litigants are protected by a panoply of formal rights, procedures, and rules. But many participants in unsuccessful ADR proceedings believe it is useful to determine that their disputes are not amenable to a negotiated settlement before commencing a lawsuit. Hearsay evidence is a common example of evidence that is considered by the parties and intermediaries in ADR forums but that is generally excluded from civil trials.