A-Z of ADR: Say YES to ADR
-Anmol Kohli (IInd Year, NLSIU Bangalore)
The benefits of Alternative Dispute Resolution (ADR) for parties makes it deserving of the title of Appropriate Dispute Resolution. Chief Justice of India S.A. Bobde has recently called for legislation mandating pre-litigation mediation.[1] This refers to a provision where parties have to attempt a settlement using ADR first. If they fail to reach a settlement, only then will they be allowed to approach the courts.
CJI Bobde’s call for pre-litigation mediation clauses is appreciated by much of the legal fraternity. This is due to the various advantages mediation offers compared to the regular justice system. Where parties would prefer a less formal alternative to litigation, ADR is the best choice for them. It would enable them to avoid public display of their conflicts. This is important for matrimonial disputes, and other disputes involving sensitive information that parties would prefer to keep confidential. Ongoing and decided litigation can easily be found online by anyone. However, the same is not true for ADR. Therefore, it should be the first choice for all individuals seeking a confidential settlement to their dispute.
K. Srinivas Rao v. D.A. Deepa,[2] a 2013 case in the Supreme Court, recognised “pre-institutional mediation”. This benefits the courts as well, as it reduces their burden. It is important due to the volume of pending cases before the judiciary. The government, recognising these problems, has amended various statutes to include pre-institutional mediation clauses.
The Consumer Protection Act, 2019 mandates mediation if the District Commission, at the first hearing, considers the dispute as conducive to a settlement.[3] It has created an entire chapter dedicated to mediation.[4] This creates a “consumer mediation cell” for all commissions at the National, State, and District levels.[5] The Commercial Courts Act, 2015 was amended in 2018 to provide for “pre-litigation mediation”.[6]
These amendments recognise the importance of ADR as a regulator of private conflicts. They challenge the traditional view of the government as the decision-maker in adversarial private disputes. A settlement in ADR ensures that both parties are satisfied. In litigation, only one party wins the case but ADR results in a “win-win situation”.
ADR techniques are beneficial in international disputes, where there can be many different jurisdictions. These jurisdictions have different laws. Therefore, adjudicating these disputes would involve complicated litigation. Further, it would be very costly for parties. In such situations, ADR would involve much simpler and flexible procedure and be less costly.[7] While ADR can require as less as 1 meeting, litigation usually takes years, involving many hearings.[8] A choice of arbitrator clause, within arbitration, allows parties to choose a third-party to hear their disputes. This is preferable to litigation, where parties cannot choose the judge who hears their case.[9] Other clauses in mediation and arbitration disputes can enable parties to keep litigation “as a last resort” after all other options have failed to produce a settlement.
Therefore, the popularity of ADR has led to parties adopting it as a first choice, and not just as an alternative. Greater government initiative in promoting ADR through legislation and establishing mediation institutions can be readily seen. The future is saying “yes” to ADR!
[1] ‘CJI Bobde bats for law containing ‘pre-litigation mediation’’ (The Week, 8 February 2020) <https://www.theweek.in/news/india/2020/02/08/cji-bobde-bats-for-law-containing-compulsory-pre-litigation-mediation.html> accessed 2 August 2020.
[2] (2013) 5 SCC 226.
[3] The Consumer Protection Act 2019, s 37(1).
[4] ibid chapter V.
[5] ibid s 74.
[6] Commercial Courts Act 2018 s 12A.
[7] ‘4 advantages of ADR Over Litigation’ (Prowse Chowne LLP) <https://prowsechowne.com/advantages-of-adr-over-litigation/> accessed 2 August 2020.
[8] ‘Ways That Arbitration Can Be Better Than Litigation’ (The Rothman Law Firm LLC) <https://www.rothmanlawyer.com/benefits-of-arbitration/> accessed 2 August 2020.
[9] ibid,
-Anmol Kohli (IInd Year, NLSIU Bangalore)
Anmol Kohli is a Second Year Law Student at the National Law School of India University (NLSIU), Bangalore.
BIMACC expresses its gratitude towards the author and to the members of the Legal Services Clinic, National Law School of India University (NLSIU) for their support in our collaborative efforts to promote ADR with this series titled “A-Z of ADR”. The purpose of this series is to increase the understanding of certain fundamental concepts of Alternative Dispute Resolution.
The Legal Services Clinic is a student-run committee that provides free legal services to the socially and the economically backward sections of the society who have difficulty accessing the judicial system. It also has a mandate of spreading legal awareness and providing free legal assistance to those who cannot afford it.
Website: www.legalservicesclinic.org/
Facebook: @legalservicesclinic
Email: lsc.nlsiu@gmail.com
Phone Number: 073586 73214
Disclaimer: The views and opinions expressed in this blog are those of the author and do not necessarily reflect the official policy or position of BIMACC, any of the members of the Board, or the empanelled neutrals.