(Indian Polity) THE JUDICIARY - Alternative Dispute Resolution (ADR) Mechanisms
Submitted by admin on Mon, 14/05/2018 - 3:20pm
The Mali math Committee (1990) which is also known as the Arrears committee, undertook a Comprehensive review of the working of the Court system, particularly all aspects of arrears and Law’s delay and underlined the need for Alternative Dispute Resolution (ADR) Consists of several techniques being utilized to resolve disputes with third-party intervention. ADR system avoids the rigidity and inflexibility of traditional and orthodox procedures. The emphasis in the ADR, which is informal and flexible, is on ‘helping the parties to help themselves’. It is not to supplement traditional method of resolving disputes through litigation. In fact, it offers only alternative option to litigation. Mainly there are following Commonly practiced alternative dispute resolution mechanisms – Arbitration, Mediation, Conciliation and Lok Adalat.
Arbitration is a traditional alternative to Court-based litigation which is often Quite time and resource Consuming. Arbitration is a quasi-judicial Process in which there are two disputing parties and a third, neutral person, Called as arbitrator or arbiter, who sits as a private judge. It is binding method of dispute resolution governed by Statute. The arbitrator resolves the dispute of the parties in Confidential manner. The appointed arbitrator considers the evidence presented by both parties and then issues an award, which is enforceable by the Courts. Procedures used in arbitration Can range from informal to rules which essentially mirror Court procedures. Arbitration is Chosen as it is fast, private and less expensive as Compared to litigation.
Conciliation is an alternative dispute resolution process where by a neutral third party is appointed as a Conciliator with Consent of the disputants. The Conciliator is not bound by the rules of evidence. His job is to pacify the two parties by setting their issues. This Conciliator then requests both the parties to prepare a list of objectives they wish to resolve. At no point of time during the Conciliation process do the two parties meet. Therefore, the Conciliator moves back and forth, and is in negotiation with both parties. Once the parties have reached to a common stand point they Can pen down and sign a Contract elaborating the agreement reached. Conciliation differs from arbitration in that the Conciliation process has no legal binding, and the Conciliation usually has no authority to seek evidence or Call witnesses, does not have decision making power, and makes no award.
Mediation is a voluntary and Consensual process where in the disputing parties are assisted in reaching a mutually agreeable settlement by a neutral third party termed as mediator, whose role is to facilitate Communications and discussions, but who has no interchangeably. There is not much difference between them. However, The Arbitration and Conciliation Act, 1996 and the Civil Procedure code differentiate between these two Concepts. While in mediation, the mediator plays more active role by giving independent Compromise formulas after hearing both the parties; in Conciliation, the third neutral intermediary’s role, mainly is to bring the parties together in a frame of mind to between the Stands taken before the Commencement of Conciliation proceedings. Mediation differs from arbitration, in which the arbitration, in which the arbitrator acts much like a judge in an out-of Court, less format setting but does not actively participate in the discussion. Unlike a Judge or an arbitrator, a mediator neither decides what is right or wrong nor does he impose and outcome on disputing parties. He just seeks to help parties to develop a Shared understanding of the conflict and to work toward building a practical and lasting resolution.
Lok Adalat is the concept having its roots in ‘people’s Court’. It is the System of Nyaya Panchayat Conceptualized as Lok Adalat. It involves people who are directly affected by dispute resolution. The main reason for bring participation in decision making. The Supreme Court has Considered the legal aid as a Fundamental Right under Article 21. Lok Adalat has been assigned to the Lok Adalat under the Legal Services authorities Act, 1987 which provides Statutory base to such Lok Adalat. They are regularly organized primarily by the State Legal Aid and Advice Boards with the help of District Legal Aid and Advice dispute resolution system presided over by a sitting or retired judicial officer as the chairman, with two other members, usually a lawyer and a Social Worker.
There is no Court fee. If the Case is already filed in the regular Court, the fee paid will be refunded if the dispute is settled at the Lok Adalat, A Lok Adalat has jurisdiction to determine and arrive at a Compromise or settlement between the parties to a dispute in respect of and matter falling within the jurisdiction of any Civil, Criminal, or revenue Courts or of any tribunal Constituted under any law for the time being in force for the area for which the Lok Adalat is being organized. The Whole emphasis in the Lok Adalat Proceedings is on Conciliation rather than adjudication. The Procedural laws and the Evidence Act are not Strictly followed while assessing the merits of the Claim by the Lok Adalat. But, if no Compromise or Settlement is accomplished, the Case is to be returned to the Court which referred it. Then the Case will proceed in the Court from the Stage immediately before the reference.
Finality of Settlement arrived before Lok Adalat: Every award of (a) Lok Adalat shall be deemed to be decree of Civil Court, (b) Every Order made by the Lok Adalat Shall be final and binding on the all the parties, (b) no appeal shall lie form the order of Lok Adalat.
Establishment of Permanent Lok Adalat under the Act: Chapter VI A was newly added by Amendment Act, 2002, introducing the Concept of Permanent Lok Adalat. The Central or State Authorities may establish by notification, Permanent Lok Adalat at any place, for determining issues in Connection to public utility Services.
Public Utility Services include:
1. Transport Service.
2. Postal, telegraph or telephone services
3. Supply of Power, light and Water to public.
4. System of Public Conservancy or Sanitation.
5. Insurance Services and Such Other Services