Alternative Dispute Resolution (ADR) - is it a waste of money, time and efforts? Is it the nemesis of litigators, merely reflecting the failures of the judiciary? Or is it quite the opposite of a bane? Let us find out by assessing its importance through its evolution process and the effect it has on the judiciary in modern times.
Alternative Dispute Resolution (ADR) methods have been recognized and adopted by various countries and it co-exists with litigation harmoniously. Some of the main reasons for the development of alternative dispute resolution include the backlog of cases in courts and the lengthy time taken to resolve disputes. Many legal battles go on for years and require enormous amounts of time, patience and money as well. ADR methods such as mediation, arbitration, and conciliation prove to be a boon as they are expeditious and cost effective with arbitration as an exception. When a party loses a case he/she can appeal to a higher court for a reversal of the decision of a lower court and this can go on till the case reaches the final court of appeal in the country, the Supreme Court.
Alternative Dispute Resolution can be dated back in history to 1800 BC when the Mari Kingdom (now modern Syria) used Mediation and Arbitration to settle disputes with other kingdoms. The Panchayat system in India and the Madhyasta helped in resolving disputes as early as 500 BC. Around the same time, in the ancient city states in Greece, decisions from arbitration as a result of disputes between two city-states were recorded on temple columns. Various methods of mediation, arbitration and negotiation can be seen throughout history, although not in the form in which it exists today. Commercial arbitration came back into the picture when the East India Company had to resolve trade disputes between other companies it traded with. Moving ahead in our timeline, to the Alabama Claims[1], a diplomatic dispute between the United States and Great Britain that arose out of the U.S. Civil War. The peaceful resolution of these claims seven years after the war ended set an important precedent for solving serious international disputes through arbitration, and laid the foundation for greatly improved relations between Britain and the United States.
However, litigation and its alternative methods weren’t as popular as they are today due to lack of awareness as well as dissatisfaction in the dispensation of justice. This of course led to the growth of organized crime or the Mafia and other extrajudicial or external methods of resolving disputes.
At the Roscoe Pound Conference of 1976, a historic gathering of legal scholars and jurists presided by Chief Justice Warren Burger came together to discuss ways to address popular dissatisfaction with the American legal system and reform the administration and delivery of justice. This conference led to the introduction of mediation as an Alternative Dispute Resolution in the United States. In India, the Arbitration and Conciliation Act, 1996 and the amendment of the civil procedure code to recognize alternative dispute resolution is certainly a sign of growth in the legal system.
The Alternative Dispute Resolution Methods that have been recognized are negotiation, mediation, conciliation and arbitration. Alternate Dispute Resolution Methods can either be prescribed by the court, or directly resorted to. Justice Sandra Day O’Connor of the US Supreme Court rightly stated that, “the courts of this country should not be the places where resolutions of disputes begin. They should be the places where disputes end after alternative methods of resolving disputes have been considered and tried.”
The global implementation of Justice O’Connor’s words is definitely not an easy task, especially in developing countries such as India where the number of judges to a million people is very low as compared to the United States. One of the biggest challenges is probably the lack of awareness and the paucity of funds allocated to this cause due to corruption that cripples our progress in any sphere, be it legal, economical, infrastructural and even social.
We need to overcome these challenges to move a step closer to becoming an advanced commercial hub, we must start increasing awareness at the lowest possible levels and set up district level institutional mediation centers. These will function alongside the district courts and ensure that the mediation centers are for public welfare so that the impoverished can gain access to justice without being burdened by court fees. Spreading awareness to the masses about how justice can be dispensed by alternative means is a must.In the metropolitan areas, citizens must be made aware of about both mediation and the slightly expensive arbitration and a clear distinction must be made between Adhoc and Institutional mediators and arbitrators.
Another factor that must be considered is the huge loss that could possibly be incurred by the lawyers and law firms’ due to a shift from litigation to ADR methods. But this can be looked over as lawyers can become arbitrators and charge a desired fee to make up for these losses. But to look at things from an economic perspective, everything has its costs and benefits.
Alternative Dispute Resolution results in a decreased workload on both the lawyers and the judiciary resulting in an increase in their efficiency and a reduction of the backlog of cases. As a result of ADR methods, in addition to an efficient legal system, we have satisfied clients. Through the aforementioned points, we can safely state that Alternative Dispute Resolution is definitely not a burden to our legal system.
[1]The Alabama Claims were a series of claims for damages by the United States government brought in 1869 against the British government as a result of ships, such as the Alabama,it built that aided the Confederate cause in seizing American merchant ships during the American Civil War. After international arbitration endorsed the United States position in 1872, Britain settled the matter by paying the United States $15.5 million for damages done by the Alabamaand other warships built in Britain and sold to the Confederacy. They ended the dispute and restored friendly relations through an 1872 treaty with the US.
Ramya B.T.
10/09/2013
©exquisite