Winner's Essay: Challenges and Problems in ADR System
Amity Law School, Delhi
As the world is getting globalized, the society is getting modern and there is increase in complexity. Due to which, we witness acceleration in the number of litigations, which resulted in the failure of states in implementing the principles of providing justice to the citizens. State by different means tries to resolve the dispute arising out between the individuals by framing rules and regulations, passing laws and implementing them in order to deliver the justice efficiently.
Unfortunately, all the means used by the states are not sufficient in rendering justice to the citizens. The judicial system seems to be incapable in disposing the increasingly number of cases/matters lodged before them. Disputes of different nature and intensity needs speedy disposal and, in many cases, specialized response, delayed process leads to absence of justice. Hence, ADR Alternative Disputes Resolution, refers the dispute to non- judicial methods. It includes wide range of dispute resolution processes and techniques that act as a tool to resolve the dispute by an agreement without the involvement of litigation. Arbitration, mediation, conciliation or negotiation are all embodied within this process. Mediation has been accepted as the most desirable dispute resolution process in cases arising out of home placement, family caregiving, guardianship and inheritance. Here, I will be discussing some of the main forms of ADR, but also some benefits it may bring, then also it brings challenges and problems to individuals and attorneys while dealing with ADR.
ADR firstly originated in USA as an alternative to legal traditional litigation system. In the 19th century, to resolve the conflict between labor and management Arbitration and mediation was used, later used for contractual disputes. In 1989, the first Britain based ADR company – IDR Europe limited bought the idea across the world and open its’s door for business. This was the start of ADR groups, organizations including CEDR (Centre for Dispute Resolution) which helped in development and promotion of ADR in UK. Mainly it was followed to save time, cost and to maintain the harmony between the parties to the dispute. It is a solution that provides win – win approach, to the parties rather than win- lose approach. ADR is of two historic types: firstly, as a method of resolving the disputes outside court and secondly, informal method attached to the judicial mechanism.
ADR operates without any formal representation. It works on the doctrine of equity where the parties to the disputes directly takes part in the process. It also includes higher degree of flexibility and informality which makes ADR system most popular and effective. It supports the reforms in the judicial system by discrediting the court procedure. It reduces delay and cost for reducing the disputes which provides satisfaction to the disputants. In Europe, recent figures speak of three main reasons for not using a court to resolve a dispute, because of its cost (45%), it’s duration (27%) and the fear that nothing would come from it (27%). It is treated as superior over formal litigation system. Generally faster and less expensive when compared to traditional litigation system.
Settlement of Disputes outside the court
When it appears to the court that there exist elements of a settlement which may be acceptable to both the parties, the court shall formulate the terms of settlement and give them to the parties, the court may reformulate the terms of a possible settlement and refer the same for:
Judicial settlement including settlement through Lok Adalat
An arbitrator is a third party who will render a decision or make an Arbitral award. The arbitrator is mutually and voluntarily accepted by both the party, who agrees to be bound by his or her decision in the matter. Arbitrator can be anyone the parties agrees to. While retaining the litigation like aspect of a third party imposing a decision, arbitration offers greater flexibility than litigation. The arbitrator is usually not bound by legal rules of evidence or other procedure. A variant of arbitration known for its use in professional sports negotiations, is called ‘final offer’ or ‘last best offer’ arbitration. Here, the parties can make several rounds of offers. If they fail to reach to an agreement, they then present a ‘last best offer’ to arbitrator who chooses between them. There are a number of processes, Non-binding arbitration, for example, allows the parties to find out what sort of award might be made by a third party. They then can choose to accept an arbitrated settlement as presented, continue negotiating or move to litigation. Med – arb combines mediation and arbitration in sequence. That is, mediation fails to reach complete settlement, the mediator schedules a separate meeting and rules on those issues, as a binding arbitrator.
Conciliation is one of the non binding procedures in which an impartial third party, known as the conciliator, assist both the party to a dispute in reaching a mutually agreed settlement of the dispute. As per the Halsbury Laws of England, conciliation is a process of persuading parties to each an agreement. Because of its non judicial character, conciliation is considered to be fundamentally different from that of litigation. Generally, Judges and Arbitrators decide the case in the form of a judgment or an award which is binding on the parties to the dispute while in the procedure of the conciliation, the conciliator who is often a government official gives its report in the form of recommendations which is made public. The concept of Conciliation was introduced in the statute of Industrial Disputes Act, 1947. The Conciliation is generally conducted by an officer appointed by Government under Industrial Disputes Act, 1947. Industrial Disputes Act, 1947 provides provisions for the parties to settle disputes through Negotiation, Mediation and Conciliation, for example Section 12, Section 18, etc. Alternate Dispute Resolution plays a major role in the family disputes settlement. Section 5 of the Family Court Act, 1984 provides provisions for the association of social welfare organizations to hold Family Courts under control of government. Section 6 of the Act provide for appointment of permanent counselors to enforce settlement decisions in the family matters. Further Section 9 of the Act imposes an obligation on the court to make effort for the settlement before taking evidence in the case. In addition to all provisions referred above, Indian Contract Act, 1872 most importantly gives a mention about Arbitration Agreement as an exception to Section 28 that renders an agreement void if it restrains a legal proceeding. Alternate Dispute Resolution whether sorted for or not can be easily inferred from presence or absence of the ‘Arbitration clause'.
In the process of mediation, a voluntarily third party is invited to assist disputing parties to achieve a settlement. Mediators typically are accomplished negotiators who manage the process of bargaining between the disputing parties. Mediation is especially effective where the disputants must or choose to continue their relationship beyond the immediate negotiation, as in family disputes or workplace issues where termination is not an option. It holds the possibility of educating the parties to deal with each other more effectively in the future. It is also very useful where settlement is complex since the issues are difficult to quantify since they are not limited to monetary awards or time allocations, such as multiparty or intrafamily disputes. Mediation as guided problem-solving is not appropriate for every dispute. For success, both negotiating parties must at least make a commitment to the process of interest-based bargaining. They must be willing to accept the mediator's techniques, which are likely to include open disclosure and treating the situation as a problem to be overcome rather than a contest to be won. Mediation presumes that people recognize what they want, that they are capable of autonomous choices, and that they will be able to articulate their desired outcome. Some personality types and some kinds of disputes may not be suited to mediation because there is either no willingness to settle or the parties have a psychological need to engage in win/lose negotiation. In other cases, there may be no way to extend the amount of resources brought into the negotiation, and there are no other interests involved. This would be the case, for example, where two insurance adjusters meet to come to a financial settlement. In this kind of case, the question simply becomes one of the allocation based on set guidelines. Interest-based bargaining has great potential for reaching lasting settlements that satisfy specific interests in a way that promotes trust and good relationships. However, it does not automatically turn difficult disputes into ones that are easily resolvable. It takes time, a cooperative environment, and a willingness to disclose on the part of the parties. It is also quite a complex process requiring skill and practice. Everyone negotiates every day, but rarely with the creativity and trust that interest-based bargaining requires. In cases where the desired outcome is less clear than a black-and-white solution, interest-based bargaining does seem to offer a way for disputants to reach agreement so that both parties can feel satisfied, rather than one coming out as the loser.
When individuals find it difficult to adjust with each other, the best way is to sit together and discuss among themselves and adopt the middle path. Instead of fighting with each other, it is better to discuss things and come to an alternative benefiting all. Negotiation takes into account the personal interests of all and helps individual to come to a common conclusion. When the targets of a team are set, all the team members are invited to discuss with their superiors. If the boss assigns a target of 20 sales a month and the team members find it unachievable, they should negotiate with their boss to slightly lower their targets, rather than saying a yes to it. When you want to go for a party, you probably negotiate with your parents that if they allow you to go for the same, you will study the whole weekend. The process of negotiation is designed to benefit all but sometimes it is little difficult to reach to a conclusion and satisfy all.
The biggest challenge to negotiation is when individuals are not ready to understand the second party at all. There are individuals who only think about their interests and tend to ignore the interest and needs of the other.
Lack of time is also a major challenge to effective negotiation. One should never be in a hurry. You need time to convince others. Never be in a rush to purchase things or close a deal. Analyze things carefully and then only come to conclusions.
Going unprepared for a negotiation is unacceptable. Don’t underestimate the second party. One should do his homework carefully. Check out even the smallest details before going for a negotiation. Don’t think that the other person is not as smart as you, he can ask you anything and remember even he will try his level best to convince you. You need to have valid answers for his questions.
Lack of patience also leads to a bad negotiation. Every individual has the right to express his views and one should not interfere in his speech. You might not agree to him but at least listen to him first. Sit with the second party and make him realize how the deal would benefit you as well as him. If possible, take a note pad and a pen with you to explain things in a better way. Carry all the necessary documents which you might require at the time of negotiation.
Being too rigid is one of the biggest challenges to an effective negotiation. Be a little flexible. Compromise to your best extent possible and don’t crib always. One should adopt a positive attitude and try his level best to adjust with each other and find out a solution which will satisfy all. Only price is not important, other factors like quality, brand name, durability must also be taken into consideration. One CD player might cost you rs.50 but another might cost you rs.40, a little cheaper than the first one, but it is quite possible that the first one is far superior in quality than the second one. Be a little sensible and understand things. If you have purchased something for rs.60, would you sell it to someone for rs.30. Obviously no, the same goes with others as well.
Lack of confidence is again one of the major threats to negotiation. Don’t forget to make an eye contact with the person sitting on the other side of the table. It’s important to be serious but that does not mean you will not even greet the other person. Be straightforward and crisp in your communication. Take care of your dressing and appearance as well.
Mediation is a confidential process, and most contracts to mediate will demand confidentiality from all parties. Generally, all settlement conferences are covered by Rule 408 of the Federal Rules of Evidence.32 The intention behind this is that individuals may state facts, explore issues, or extend offers more freely than they would if they knew that anything, they said could potentially be used against them in court. Given this security, disputants may be encouraged to speak about their motives and their true bottom line. They need not posture or "play to the gallery"; as a result, discussions can be frank and open. Most states have statutes giving almost blanket confidentiality to mediation sessions. Although mediators have been subpoenaed, courts have generally held that maintaining the process as an expeditious way to settle disputes is a greater public interest than revelation of facts in particular disputes.
Power imbalance is a serious concern, especially when mediation may involve traditionally under empowered groups. For example, a patient, typically seen in a passive and obedient role, may be reluctant to question authority figures, while a surgeon may be used to and comfortable in giving unequivocal recommendations. The mediator considers whether and how the power imbalance affects the negotiation and result. The mediator could justify allowing a negotiation with one side seemingly less powerful than the other, since any mediation is voluntary. However, the mediator may act to make sure that both sides come to the negotiation fully informed and autonomous.
Global world is getting known to the ideas of Alternative Dispute Resolution. As there is increasing no. of industrial disputes, contractual as well as family disputes. In this fast-moving world, parties to the dispute doesn’t want to waste their time and money in the traditional litigation system. While dealing with the processes of dispute resolving there are certain challenges under this system. Cultural differences between the parties affects the thought process and decision-making ability of the parties. In most the process of ADR, there are no written statues which govern them, eventually which resulted in the informal form of dispute resolution which results in the situation of the matters getting worse. Power imbalances between the parties to the dispute may leads to influences and the false settlement. Lack of patience amongst the parties in the process of negotiating between them may leads to even the dispute getting worse between them. Sometimes, the parties to the dispute don’t want to understand each other which results in waste of time ands to returning of case to the court or filling a civil suit which makes the process even more time consuming and difficult to the parties. Choosing the appropriate forum or the means by which the parties want to settle the matter is also a major challenge faced by them. Enforcement of the settlement is also a major problem in the outside court settlement. So, we can say that it may bring some benefits to the individual to the dispute but it also brings problems are challenges to them while dealing with the process of ADR. Outside court settlement may sounds less costly and less time consuming but also it is more complicated and challenging the disputants and creates problems.