By M.C. Linthoingambee
“The courts should not be the places where resolution of disputes begins. They should be the places where the disputes end after alternative methods of resolving disputes have been considered and tried.”
~ Sandra Day O’Connor (First woman to serve on the US Supreme Court)
All of us live in conflict zones. It is when we lessen the disputed ideologies and resort to an understanding that we may start to function in a resolved conflict space. Solutions are the results of problems. Ignorance is one of the greatest impediments that herald a nation or a society so instead of running away, an answer is best served through a question. It’s a lawyers job to help and make sure that the solved puzzles are delivered on to our doorway even though it is impossible to find answers to all those known stories or yet unknown. Dispute resolution is one of the major functions of a stable society. In the hope of restoring the Gandhi way of life, the prospect of restoring peace as a whole is to be viewed in a much larger image. Therefore, the state has also helped the above cause by setting up institutions and norms to back and govern the above contentment.
The great number of piled up cases in the Indian courts pending disposal of justice gives into light to the introduction of the Alternate Dispute Resolution (ADR). ADR or external dispute resolution includes the solving of disputes from processes and techniques in the hope of comforting the disagreeing parties of a case to come into a common agreement. Despite all the resistance towards this system in the past, it is gaining popularity in the modern gateway. ADR is generally classified into at least four types: negotiation, mediation, collaborative law, and arbitration and more in addition from time to time. Comparatively to the other forms of litigation ADR is less costly, suitable for multiple party disputes, complexity is lesser, most importantly it also helps preserve the previous relationships and it has more going promoting its due significance.
There is an International Centre for Alternate Dispute Resolution (ICADR) proclaimed widely promoting the cause of self righteousness as the Government of India felt the necessity to take the step to provide an autonomous body, ICADR also exists in our country. In the legally attributed records, Alternative Dispute Resolution in India was founded on the Constitutional basis of Articles 14 and 21 enshrined in part III of the constitution of India which grant the important Fundamental Rights of Equality before Law and Right to life and personal liberty respectively to all the citizens. ADR in India also tries to achieve the Directive Principle of State Policy relating to Equal justice and Free Legal Aid as laid down under Article 39-A of the Constitution. The Acts, which deal with Alternative Dispute Resolution are Arbitration and Conciliation Act, 1996 and the Legal Services Authorities Act, 1987. Section 89 of the Civil Procedure Code, 1908 makes it possible for Arbitration proceedings to take place in accordance with the Acts stated above. Also arbitration in India is modeled on the UNCITRAL model of arbitration.
Justice delayed is justice denied. Today, categorizing over the restricted and untimely delay of ‘access to justice’, we have seen people resort to the actions of crowding over strikes, road blocks, and other modes of disobedience, this situation has not arisen over night, rather it’s a social development that has taken place slowly, day by day. The Legal Services Authorities Act, 1987 has also been amended from time to time to endorse use of ADR methods. In promoting ADR new methodologies to the same has further rose up with the introduction of Mini-Trial, Consumer Forums, Lok Adalats and Banking Ombudsman, etc and they have also been accepted and recognized as effective Alternative dispute resolution methodologies. Though the issue of access to justice could be well addressed by way of changes in the existing structure, social harmony is something beyond the perception of litigation. It does not rule out the possibility of creating alternatives that can fabricate a structure with accessibility. The attempts to find answers for the problems existing in the present day legal system could be categorized into two: 1) revivalist- attempting to traditionalize the system 2) approach of fusion – wherein creative syntheses of Indian and Western methodologies are sought.
Despite many advantages of using Alternative dispute resolution mechanisms, our society has been reluctant to give it its due recognition. Alternative dispute resolution encompasses a range of means to resolve conflicts short of formal litigation. Mouthing on the statements of a few great men, John F. Kennedy said in this respect: “Let us never negotiate out of fear but let us never fear to negotiate.” As scientists create and conducts studies towards new findings, the art of legal development of the solving of disputes in an alternate regime helps benefit the reduction of a trauma, legal cost, mental disturbance from being compelled to enter into a litigation (the fighting for the settlement of case in the open court) instead of privately arriving into a settlement and lowering the general expenses. It is time to open ourselves to open the door of a greater change and achieve social harmony.
(M.C. Linthoingambee is an undergraduate pursuing B.Com. LL.B(H). An avid blogger, poet, a seasonal artist and a foodie, she is also a life member to the Indian Society of the Red Cross.)
