"Discourage litigation. Persuade your neighbours to compromise wherever you can. Point out to them how the nominal winner is often a real loser - in fees, expenses, and waste of time. As a peacemaker, the lawyer has a superior opportunity of being a good man. There will still be business enough."
---- Abraham Lincoln
Our judicial system is based on the Anglo-Saxon model of jurisprudence, better known as the adversarial system of law. Under this model, two opposing parties represented by their respective counsel, present conflicting views as a necessary adjunct to the pursuit of justice.
The Constitution of India aims to provide free legal aid to ensure that opportunities for securing justice are not denied to any citizen by reason of economic inability. India’s socio-economic conditions warrant highly motivated and sensitized legal service programs as large population of consumers of justice are either poor or ignorant, illiterate or backward, and as such, at a disadvantageous position.
In a civilized society, principles of natural justice along with the “Rule of Law” should result in complete justice in case of a dispute. Rule of Law is defined as the state of order in which events conform to the law. It is an authoritative, legal doctrine, principle, or precept applied to the facts of an appropriate case. These definitions give us the indication that the Rule of Law is a authoritative concept which might lead to a win-lose situation in cases of dispute. Therefore, ADR uses the principles of natural justice in consonance with the Rule of Law, in order to create a favorable atmosphere of a win-win situation. This is much needed in countries like India where litigation causes a great deal of animosity between the parties due to the agony caused by the long-standing litigation. ADR, thus, gains its momentum in India today.
The Arbitration and Conciliation Act of 1996 marked an epoch in the struggle to find an alternative to the traditional adversarial system of litigation in India. It heralded the dawn of a new regime of negotiated settlement and consensual dispute resolution, as a means of combating the insuperable impediments posed by the decrepit and anachronistic civil justice system.
The focus is laid on Section 89 of CPC, 1908, its need and the revolutionary changes has brought in terms of ADR practices in India. The paper further discuss Article 39-A of the Constitution of India and ways to realize it by the state. The paper appreciates the role of Legislature in promoting ADR practices and also analyses role played by judiciary in this context.
The concept of Lok Adalat was pushed back into oblivion in last few centuries before independence and particularly during the British regime. Now, this concept has, once again, been rejuvenated. It has, once again, become very popular and familiar amongst litigants. The Legal Services Authorities Act, 1987, pursuant to the constitutional mandate in Article 39-A of the Constitution of India, contains various provisions for settlement of disputes through Lok Adalat. Thus, the ancient concept of Lok Adalat has, now, statutory basis. This is the system which has deep roots in Indian legal history and its close allegiance to the culture and perception of justice in Indian ethos.
The term "alternative dispute resolution" or "ADR" is often used to describe a wide variety of dispute resolution mechanisms that are short of, or alternative to, full-scale court processes.It is a flexible judicial process which tends to support court reform, improve access to justice, increase disputant satisfaction with outcomes, reduce delay, and reduce the cost of resolving disputes.The utility of ADR in resolving the problems of the traditional litigative system has been emphasized and the focus has also been placed on the successes of Arbitration ,Mediation and Conciliation.
The rationale behind the adoption of a system of ADR is undoubtedly the need to find a method of circumventing and eventually effacing the tremendous problems which beset the litigative system. These problems can be broadly classified into: delay, expense, rigidity of procedures and a reduction in the participatory role of parties.
Justice warren Burger, the former CJI of American Supreme Court once rightly stated “The harsh truth is that we may be on our way to a society overrun by hordes of lawyers, hungry as locusts, and bridges of Judges in numbers never before contemplated. The notion that ordinary people want black robed judges, well-dressed lawyers, fine paneled court rooms as the setting to resolve their disputes, is not correct. People with legal problems like people with pain, want relief and they want it as quickly and inexpensively as possible”.
While the court-connected ADR movement flourished in the U.S. legal community, other ADR advocates saw the use of ADR methods outside the court system as a means to generate solutions to complex problems that would better meet the needs of disputants and their communities, reduce reliance on the legal system, strengthen local civic institutions, preserve disputants' relationships, and teach alternatives to violence or litigation for dispute settlement. In 1976, the San Francisco Community Boards program was established to further such goals. This experiment has spawned a variety of community-based ADR projects, such as schoolbased peer mediation programs and neighborhood justice centers.
In the 1980s, demand for ADR in the commercial sector began to grow as part of an effort to find more efficient and effective alternatives to litigation. Since this time, the use of private arbitration, mediation and other forms of ADR in the business setting has risen dramatically, accompanied by an explosion in the number of private firms offering ADR services.
It is more noticeable whether judicial attitudes and the legal culture in the country are friendly to ADR, how public attitude is influencing ADR and hindrances faced in introducing speedy justice through ADR.
ADR programs can support not only rule of law objectives but also other development objectives, such as economic development, development of civil society and support for disadvantaged groups, by facilitating the resolution of disputes that are impeding progress towards these objectives.
Though ADR programs have put new impression as a judicial procedure apart from regular court.It has various demerits as well as limitations.
· ADR programs do not set precedent, refine legal norms, or establish broad community or national standards, nor do they promote a consistent application of legal rules.
· ADR programs cannot correct systemic injustice, discrimination, or violations of human rights.
· ADR programs do not work well in the context of extreme power imbalance between parties.
· ADR settlements do not have any educational, punitive, or deterrent effect on the population.
· It is inappropriate to use ADR to resolve multi-party cases in which some of the parties or stakeholders do not participate.
· ADR may undermine other judicial reform efforts.
Lawyers and clients often have divergent attitudes and interests concerning settlement. This may be a matter of personality (one may be a fighter, the other a problem solver) or of money. In some circumstances, a settlement is not in the client’s interest.
For example, the client may want a binding precedent or may want to impress other potential litigants with its firmness and the consequent costs of asserting claims against it. Alternatively, the client may be in a situation in which there are no relational concerns; the only issue is whether it must pay out money; there is no pre-judgement interest; and the cost of contesting the claim is less than the interest on the money. In these, and a small number of situations, settlement will not be in the client’s interest.
Law schools train their students more for conflict than for the arts of reconciliation and accommodation and therefore serve the profession poorly. Already, lawyers devote more time to negotiating conflicts than they spend in the library or courtroom and studies have shown that their efforts to negotiate were more productive for the clients. Over the next generation, society’s greatest opportunities will in tapping human inclinations towards collaboration and compromise rather than stirring our proclivities for competition and rivalry. If lawyers are not leaders in marshalling co-operation and designing mechanisms which allow it to flourish, they will not be at the centre of the most creative social experiments of our time.
There is an old Chinese curse "may you live in interesting times". From a legal point of view, we cannot think of a time in the recent past that is more interesting than the present. Whatever our individual views may be on the merits or otherwise of the changes that are taking place, there is no doubt that we are experiencing a sea change in all aspects of the law and this change is not merely one of practice and convenience, but of fundamental underlying theory as well.
Let me conclude with a sound but an imperative caveat that we must be ever mindful that "Yesterday is not ours to recover, but tomorrow is ours to win or lose", and, therefore, let us get together, stand united, and strengthen our Bench and Bar irrevocable unique partnership and make collaborative, concerted, cooperative, creative, collective and cohesive endeavours in popularising, proliferating and pioneering, concept and philosophy of important institution - alternative dispute resolution mechanism - so as to strengthen our pluralistic democratic values, rule of law and thereby invigorate the commandment, "Justice shall never be rationed". Let us therefore make all efforts to advance and strengthen "equal access to justice", the heart of the Constitution of India, a reality.
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