23-Sep-2023-Editorial

ALTERNATE DISPUTE RESOLUTION IN INDIA

ADR refers to a bouquet of mechanisms that enable disputing parties to resolve their differences amicably, without the intervention of courts.

Given the delays in Indian court proceedings and increasing cost of litigation, the significance of ADR in India cannot be understated.

What is Arbitration?

Arbitration is a procedure in which a dispute is submitted, by agreement of the parties, to one or more arbitrators who make a binding decision on the dispute. In choosing arbitration, the parties opt for a private dispute resolution procedure instead of going to court.

Arbitration is like a court procedure because the parties submit evidence similar to a trial where the third party hear the entire situation and give his decision which is binding upon the parties.

What is Conciliation?

Conciliation means settling disputes without litigation. It is an informal process in which the conciliator, i.e. third party tries to bring the disputants to agreement.

He overcomes the disputable issues by lowering the tension, improvement in communication, interpreting issues, providing technical assistance, exploring potential solutions and bringing the negotiated settlement before the parties.

What is Mediation?

Mediation is one of the alternative dispute resolutions which are voluntary and informal processes for resolution of disputes.

Mediation is a process which is under the control of the parties. The mediator acts as a middle person who helps to come on a negotiated common point of their dispute.

The passing of the Mediation Act 2023

The Mediation Act, 2023 aims to foster a link between the mediation and the arbitration of commercial disputes, thus reducing the burden on Indian courts.

The Act will obligate each party to take steps to settle their dispute through pre-litigation mediation before approaching an Indian court.

Until recently, we focused on arbitration or conciliation of disputes under the Arbitration and Conciliation Act, 1996 (A&C Act). But mediation of disputes is finally getting its due.

Many benefits

1. The potential benefits are several. This requirement is expected to reduce the filing of frivolous claims before Indian courts.
2. Owing to the confidentiality of mediation, it may also mitigate the risk of deterioration of the parties’ relationship due to a publicly fought dispute.
3. Yet, at the same time, concerns are raised about the feasibility of mediation conducted under the sword of obligation as opposed to a sincere desire to arrive at an amicable resolution.

Timelines in Mediation

Subject to an extension by the parties, they must also complete the mediation within 180 days of the parties’ first appearance.

Is knocking the door of Courts ruled out completely?

On the other hand, the Act will not remove the refuge of Indian courts entirely. A party may, in exceptional circumstances, seek urgent interim relief from a court before the commencement or during the continuation of mediation.

Service providers

The Act also places emphasis on institutional mediation in India. It envisages “mediation service providers” to provide not only the services of a mediator but also all the facilities, secretarial assistance, and infrastructure for the efficient conduct of mediation.

India is already home to experienced arbitration institutions, some of which provide mediation services that are on a par with global best practices.

These institutions are, therefore, expected to play a meaningful role in India’s mediation journey.

Only then would India become a global hub not only for arbitration but also for all aspects of commercial dispute resolution.

Mains Questions

1. Describe how the ADR can be a viable source of dispute resolution in the backdrop of increasing burden of the courts? (150 Words) 10 Marks