Alternative Dispute Resolution (ADR) for civil nature conflicts includes Mediation, Conciliation and Arbitration. These are strategies for resolving conflicts on a large and international scale. Without having access to the traditional judicial system, such as judicial courts, various approaches can be used to resolve conflicts. The Indian Constitution clearly states in Article 39A that "The State shall ensure that the operation of the legal system promotes justice on a basis of equal opportunity, and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities."
Mediation is an old means of resolving disagreements between parties. Various forms of business mediation acquired popularity in India throughout the pre-British period. The Mahajans were respected, impartial, and intelligent businesspeople who used mediation to settle disagreements between merchants. The informal method used in Gujarat, India's western province, was a hybrid of mediation and arbitration, now referred to as Med-Arb in the West. Arbitration had no legal authority, despite its great popularity in the corporate world.
Mediation is a non-formal approach of resolving conflicts that follows a set of principles or procedures. The parties are not bound by the mediation's decision. If the disputing parties have agreed to go through the mediation process, they are not required to agree to the Mediator's proposed view. The mediator can make suggestions, offer comments, and suggest to the parties involved certain do’s and don’ts, but he cannot compel the parties to continue with the mediation if they are not interested. Mediation is a process in which the parties have complete authority. The mediator serves as a go-between, assisting the parties in reaching an agreed-upon common ground in their disagreement. They are educated experts or attorneys who help disputing parties in gathering at a common location to discuss their difficulties and attempt to negotiate a common outcome. To mediate the parties' conflict, a mediator uses a unique type of discussion and communication.
There are of course certain advantages and disadvantages to the method that must be weighed before proceeding with it. The advantages of this method are in the form of the following- It is an inexpensive method, swift, confidential, gives the parties involved full control over the proceedings and outcome, allows for a flexible and mutual outcome, and is a less stress conducing method as compared to its counterparts. The disadvantages on the other hand include- A solution to the issue not arising due to lack of mutual agreement between the parties as a result of conflict of interests, the method lacking legal authority in terms of its conduct and, an absence formality within the dispute resolution method.
The 1980 UNCITRAL Rules on Conciliation recognized the value of conciliation as a means of resolving disputes amicably in adoption of common conciliation rules by countries with various legal, social, and economic systems would considerably assist to the development of harmonious international economic ties. The United Nations Commission on International Trade Law's Model Law on International Commercial Arbitration and Conciliation (UNCITRAL Model Law) is the basis for the Arbitration and Conciliation Act of 1996 (the Act). Despite the fact that the Act was not designed to replace the court system, it did bring in a new age of private arbitration and conciliation. It was also the first time in India that a complete conciliation law had been created.
Conciliation is covered under the third part of the Arbitration and Conciliation Act of 1996. It is a voluntary process in which disputants agree to settle their differences through conciliation. It's a
flexible method that lets the parties determine the conciliation's date and location, as well as the structure, topic, and terms of the talks. It is a non-formal process in which a conciliator or a thirdparty attempt to reach a resolution between the disputants. He settles disputes by lowering tensions, increasing communication, translating issues, providing technical assistance, investigating feasible options, and presenting the parties with a negotiated settlement. Conciliators have their own style of resolving conflicts, and their acts aren't necessarily strict and legal. A contract, such as an arbitration agreement, is not required. The conditions of the settlement must be agreed upon by both parties. It includes, among other things, labor disputes, marriage issues, and family disagreements.
Conciliation can be further divided into two types- Voluntary and Compulsory Conciliation. Parties who freely participate in conciliation for the purpose of settling their disagreement are referred to as voluntary conciliation. Compulsory Conciliation is used when the parties do not wish to use the voluntary conciliation option and instead choose compulsory conciliation. The process is regarded to be compulsory in this technique if the parties do not wish to meet with the other party to address the disagreement.
There are certain advantages and disadvantages to this method however. The fact that the conciliator is typically an expert in the issue of disagreement is one of the advantages. Conciliation is less expensive than litigation, as is any other sort of alternative dispute resolution. If the parties to the dispute are unhappy with the proceedings, they can go to court. It is a private process with easy procedures. The method has a number of drawbacks, including the fact that the process is not binding on the disputants. Due to the lack of an appeals process, the parties are sometimes unable to reach an agreement on their differences.
Arbitration, just like the process of conciliation is governed by the Arbitration and Conciliation Act, 1996. The 1996 Act is the cornerstone of Indian arbitration law. An act established to bring the laws governing local and international arbitration, as well as their enforcement, under one umbrella. Between 2015 and 2019, significant amendments were made in an effort to make arbitration a preferred method of resolving commercial disputes and to make India a center of international commercial arbitration. The current law is comprised of several similar changes, the most recent of which was passed in 2019.
Arbitration is analogous to a court system in that the parties submit evidence, similar to a trial, and a third party hears the entire scenario and renders a binding judgement. "An arbitration is a reference to the decision of one or more persons, either with or without an arbitrator, on any subject or matters in dispute between the parties," the Court stated in Collins v Collini. Arbitration is the process of obtaining an arbitral award from an arbitrator on an ongoing dispute. The cause is heard and settled between the parties in a dispute before a person chosen by the parties or appointed under legislative authority in the arbitration process. The goal of arbitration is for one or more arbitrators designated by the parties to settle the disagreement that has arisen between them by going over the papers and evidences. In the case of arbitration, the arbitrator makes a decision after evaluating the parties' disagreement. The decision of an arbitrator is final and binding on both parties. Unlike other types of dispute resolution, no party can withdraw a subject from arbitration once it has been presented. Arbitration can be done either voluntarily or forcibly. If the two parties cannot resolve their disputes on their own, they agree to send the matter to a neutral authority, whose decision will be binding on both sides. Compulsory arbitration, on the other hand, is a procedure in which the parties are compelled to arbitrate regardless of their wishes. When one side in a labor dispute feels wronged by the other's acts, the aggrieved party might ask for the case to be sent to any adjudication agency for resolution.
There are again both advantages and disadvantages to this method of dispute resolution. The advantages are in the form of – Flexibility, Expeditious when compared to litigation, Confidential and Easier enforceability. The disadvantages include the fact that due to the mandatory nature of the arbitration contract, the parties cannot approach the court, the limited number of appeals available to the parties, the unavailability of grant of interlocutory applications, the arbitration awards being indirectly enforceable.
The aforementioned procedures and approaches are the most often utilized ADR methods. However, there are a plethora of different ADR techniques, many of which modify or combine the preceding techniques. The goal of each type of ADR is to resolve the issue through a round table discussion. ADR is the most successful method for reducing the court's workload. ADR fosters a positive relationship between the parties. ADRs are so effective and widely accepted in resolving conflicts that courts have begun to recognize certain of them, such as mediation, more frequently. This removes the need for litigation and the awarding of a fair and unbiased resolution of a person's disputed issues on a legal and ethical basis that is grounded in reality. This is what sets ADR apart from traditional litigation. After a court trial, there can only be one winner, whereas after conciliation, mediation, or negotiation, all parties can be considered winners as long as there is no conflict between them and they follow the settlement procedure.
This article is written by Aadiya Sinha of Rajiv Gandhi National University of Law.