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INTRODUCTION
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The justice dispensation system is facing challenge of delay in the disposal of cases in courts. However hard the Judges may strive, still the delays in reaching a finality in dispute resolution have become inevitable. The litigating public are compelled to live with these delays and this is leading to frustration, loss of faith amongst the disputants and eventually to emergence of unethical, unsocial practices in society. Be it at the lowest level in the hierarchy of courts or the High Courts or the Tribunals which are specially constituted under various enactments to deliver definitive judgments much faster in a summary way, all have fallen prey to these procedural delays. There is dissatisfaction all around. If we seek reasons for these delays, we end up blaming one or the other of the role players in the justice dispensation system, but on a deeper analysis it is the collective responsibility of all concerned who are contributing towards the delays in getting justice.
In a Conference held in New Delhi on 4th December, 1993 under the Chairmanship of the then Prime Minister of India and presided over by the Chief Justice of India, the following Resolution was adopted :-
“The Chief Ministers and Chief Justices were of the opinion that Courts were not in a position to bear the entire burden of justice system and that a number of disputes lent themselves to resolution by alternative modes such as arbitration, mediation and negotiation. They emphasised the desirability of disputants taking advantage of alternative dispute resolution which provided procedural flexibility, saved valuable time and money and avoided the stress of a conventional trial”.
The problem of delay injustice and backlog of cases has again come up for consideration in the Conference of the Chief Ministers and the Chief Justices of High Courts held on 18th September, 2004 in New Delhi. The Conference was inaugurated by the Hon'ble Prime Minister of India. The Hon'ble Chief Justice of India Mr. Justice R.C. Lahoti, during the course of his address, observed that :-
‘The philosophy of Alternate Dispute Resolution systems is well-stated by Abraham Lincoln: “discourage litigation, persuade your neighbours to compromise whenever you can. Point out to them how the normal winner is often a loser in fees, expense, cost and time.” Litigation does not always lead to a satisfactory result. It is expensive in terms of time and money. A case won or lost in court of law does not change the mindset of the litigants who continue to be adversaries and go on fighting in appeals after appeals. Alternate Dispute Resolution systems enable the change in mental approach of the parties............ A Conference on ADR systems is being held in Mumbai on 2tfh November this year where, leading experts in the world on ADR system would be available for launching the movement on a large scale’.
ESTABLISHMENT OF ICADR
At the initiative of some of the leading legal luminaries the International Centre for Alternative Dispute Resolution (ICADR) was established and registered as a Society under the Societies Registration Act, 1860 for the promotion and development of ADR facilities and techniques to facilitate early resolution of disputes and to reduce the increasing burden of arrears in Courts. The ICADR is an autonomous organisation working under the aegis of the Ministry of Law and Justice, Government of India, with its Headquarters at New Delhi and Regional Centres at Hyderabad and Bangalore. It was inaugurated by the then Prime Minister of India at New Delhi on October 6,1995. The Chief Justice of India is its Patron.
ENACTMENT OF ARBITRATION & CONCILIATION ACT, 1996
In the wake of globalisation of markets and liberalisation of our economy, it became necessary for the Government of India to enact a new legislation based on UNCITRAL Model Law on International Commercial Arbitration and UNCITRAL Conciliation Rules to provide for arbitral procedure which is fair, efficient, and capable of meeting the needs of international business community. This is how the Arbitration and Conciliation Act, 1996, came into existence. The said Act makes significant changes in the entire process of arbitration, right from the time of the appointment of Arbitrators till the completion of the process of arbitration. The supervisory role of the court is reduced to a minimum and once the process of arbitration commences the intervention by the court can be only after the arbitral award is made. The grounds for challenging an arbitral award are precise and specific. The arbitral award has been given the same status and force as that of a court decree under the Code of Civil Procedure, 1908.
Several cases were filed in courts with regard to the interpretation of some of the provisions of the Arbitration and Conciliation Act, 1996. The High Courts and the Supreme Court consistently upheld the provisions of the said Act. The Code of Civil Procedure, 1908 has been amended by inserting several new provisions all of them aimed to reduce the delays in court litigation. Section 89 has been inserted into CPC under which an obligation is placed upon the courts to try ADR methods before the cases are taken up for trial. The constitutional validity of this amendment to CPC was challenged and the Supreme Court while upholding the constitutional validity of Section 89 observed, inter alia, by its Judgement dated 25th October, 2002 in Salem Advocate Bar Association, Tamil Nadu vs. Union of India that -
“.. .keeping in mind the laws delays and limited number of Judges which are available it has now become imperative that resort should be had to Alternative Dispute Resolution mechanism with a view to bring to an end litigation between the parties at an early date”.
A Committee has been constituted by the Supreme Court to prepare the rules to be followed by all the courts uniformly for implementation of the provisions of Section 89 of CPC. The Committee has prepared tentative rules to be followed by all the Courts in trying these ADR methods.
MEDIATION/CONCILIATION
There is now a growing shift the world over to Mediation/Conciliation which unlike arbitration and court trials does not involve a determination of issues by a third party. A Mediator/Conciliator is a neutral third party appointed with the mutual consent of the disputants to facilitate a negotiated settlement of the dispute. Today Mediation/Conciliation is the most rapidly growing form of ADR. It is being actively utilised in almost every conceivable type of dispute resolution and comes in various forms. The process has also been effectively adapted for multiple party dispute resolution with tremendous success. On average the success rates of mediation processes range from 80% to 85%.
Under the Arbitration and Conciliation Act, 1996 a Settlement Agreement arrived at among the disputants has the same status and effect as if it is an arbitral award on agreed terms and it is final and binding on them. These alternative dispute resolution methods are not new to India and have been in existence in some form or the other in the olden days. It is only now that there is world-wide acceptance and statutory recognition for such procedures to facilitate early settlement of disputes on agreed terms.
In addition to the more commonly known methods of alternative dispute resolution such as Arbitration, Mediation/Conciliation, there are several other methods devised and perfected in developed countries on scientific lines, to resolve disputes without having to resort to traditional court litigation. All these methods have become so popular among the parties in advanced countries, that the parties prefer these methods to court litigation in 9 out of 10 cases. It is due to this reason that court litigation in the developed countries is not as high as in India and the courts in those countries are in a position to take up more important cases bearing on national interests for adjudication.
ADVANTAGES OF ADR
One distinct advantage of ADR over traditional court proceedings is its procedural flexibility. It can be conducted in any manner to which the parties agree. It may be as casual as a discussion around a conference table or as structured as a private court trial. Also unlike the courts, the parties have the freedom to choose the applicable law, a neutral party to act as Arbitrator/Conciliator in their dispute, on such days and places convenient to them and also fix the fees payable to the neutral party. ADR being a private process offers confidentiality which is generally not available in court proceedings. While a court procedure results in a win-lose situation for the disputants, in an ADR process such as Mediation or Conciliation it is a win-win situation for the disputants because the solution to the dispute emerges with the consent of the parties. Lastly, as compared to court procedures, considerable time and money is saved in ADR procedures.
HEAD OFFICE OF ICADR
The ICADR has constructed its own building at New Delhi at Plot No. 6, Vasant Kunj, Phase-II, Institutional Area, New Delhi, with excellent facilities for conducting arbitration, mediation/conciliation, etc. and a floor area of about 50000 sq.ft. These facilities are of international standards and include Conference Halls, Arbitration Rooms, Chambers for Arbitrators, parties and their legal counsel, a well-stocked library etc.
POST GRADUATE COURSES IN ADR
As part of its objectives, ICADR is conducting the following courses in collaboration with NALSAR University of Law, Hyderabad to promote and popularise ADR methods:
Post Graduate Diploma in Alternative Dispute Resolution(Regular Course) at Hyderabad.
Post Graduate Diploma in Alternative Dispute Resolution(Proximate Education)- based on distance education model and is conducted on all-India basis.
Post Graduate Diploma in Family Dispute Resolution(Regular Course) at Hyderabad.
Post Graduate Certificate course in Alternative Dispute Resolution at notified centres.
The important details of these courses are available under the link “ Post Graduate Diploma Courses” on this website.
ICADR is also conducting Seminars and Workshops on Arbitration and Conciliation from time to time.
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