Disputes are unavoidable but can be managed and resolved via various techniques. A well-practiced form of dispute resolution around the world is litigation in Civil and Criminal Courts. Generally, Courts are heavily subsidized by the Government and are found to be a burden on tax payers. By their very constitution, Courts are bound by mandatory rules of procedure, evidence, and testimony. There is a lot of formality involved in dispute resolution by the Court.
Attempts have been made to speed up the litigation processes and reduce its cost but litigation remains an expensive and time‐consuming solution to resolve disputes.
Arbitration has been introduced to overcome some of the problems encountered in formal litigation but Arbitration has also proved itself to be very similar to litigation, both in cost and time. Gradually, world over, it has dawned on legal luminaries that there should be a substitute to the formal methods of litigation, that is in the Courts and Arbitration Tribunals, and in the process of this thinking and recognition, Alternative Dispute Resolution (“ADR”) techniques were established to deal with the situation.
Alternative Dispute Resolution:
Alternative Dispute Resolution can be defined as the process by which disputes between parties are settled or brought to an amicable result without the intervention of a Judicial Institution, or a Judicial Officer such as a Judge or a Magistrate.
In India, Courts can refer disputes between parties to ADR under section 89 of the Civil Procedure Code (Amendment) Act, 1999. ADR mechanisms include Mediation, Negotiation, and Conciliation between parties. Quasi-judicial organizations such as Lok-Adalat (People’s Court) resolve matters between parties including matters which are Civil, Commercial, or of an Industrial nature, , expeditiously and in a hassle-free manner.
In the ADR process, parties to the dispute engage a neutral third party to assist them in identifying differences and resolving them. In this manner, disputes and differences are resolved without the parties having to face a court trial. This approach enables individuals and groups to maintain cordial relations, social order, and reduce hostility, which is normally associated with a trial in Court.
The Supreme Court of India encourages parties to use pre-trial Mediation in an attempt to resolve disputes before initiating legal proceedings. In Afcons Infrastructure v. Cherian Varkey Construction (2010) the Supreme Court emphasized upon the importance of Mediation, especially in commercial matters, and observed that the mode of ADR is ideal for parties faced with complex issues, provided the parties are willing to resolve their differences via the process of negotiation and reconciliation.
Reducing the backlog in Courts:
A research report on resolving pending cases through ADR under section 89 of the Civil Procedure Code (Amendment) Act, 1999 based on a case study revealed:
The number of pending cases across India as per the National Judicial Data Grid are as follows:
71.67% of pending civil cases and 72.91% of pending criminal cases are pending for more than one year.
A major reason for the delay in the justice system in India is the paucity of Judges and Judicial Institutions. To a certain extent, this paucity arises because the posts of the Judges are created but are not filled in time. India had one of the lowest Courts to Population ratio in the world. In contrast, the number of cases filed in Court are increasing by the day and this will surely add to the pendency if something is not done.
The Chief Justice of India, Honorable Justice N. V. Ramana, while speaking at the India-Singapore Mediation Summit on “Mediation for Everyone: Realizing Mediation’s Potential in India”, emphasized on the requirement of making Mediation as a mandatory mechanism for dispute resolution to achieve social justice in India. During his speech, the CJI highlighted the historical use of Mediations in India which dates back to Mahabharata (Indian mythology) times and conceptualized Mediation as a pivot for a possible early redressal of dispute between the Pandavas and Kauravas, where Lord Krishna attempted to mediate the dispute between them to prevent the war. Unfortunately, the Mediation failed and the rest is history.
Further, the CJI remarked that Mediation and Conciliation can go a long way in reducing pendency of the backlog of cases, relieving the litigant community from heavy costs and saving time in the process. Honorable Justice Ramana pressed for elevation of the Mediation process by recommending that states develop omnibus laws on Mediation and robust ADR facilities.
Incentivization the ADR practice:
A vast number of people in the country are not aware of the Mediation process and the fact that there is a mechanism of Alternative Dispute Resolution, established at Central and State levels for settlement of grievances in matters referred to as administrative cases. As a result of this lack of awareness, potential litigants largely believe that litigation in Courts is the only means to resort to a resolution of their disputes. Therefore, in the first instance, there must be a drive to sensitize the populace of ADR techniques. Here, both the lawyers, as well as the Judicial Officers should conduct public seminars, conferences, either virtually or physically to ensure that the consumers of justice are attuned to the Mediation process and also to the advantages of the ADR procedure. As is well known, in a suit, parties know the truth, it is only the judges or the mediators who are on trial (Quote attributed to Honorable Justice Midha of the Delhi High Court).
The Government along with the Judiciary has certainly adopted various methods to reduce the number of pending cases such as speeding up the process, establishing special Courts, and increasing the number of adjudicating Judges. The Government has introduced incentive programs and framed policies for waiver of partial Court fees which can be availed by interested and litigating parties if they adopt the Mediation process for their dispute resolution.
We recommend that for the effective implementation of Mediation as one of the tools of conflict resolution, Attorneys and Mediators have to play an active role to serve as guides and to promote public confidence in the Mediation process. Lawyers must charge a reasonable service fee considering the informality of the process to further incentivize the program.
It is pertinent to note that the disputes resolved via Mediation are quick, not time consuming and are not required to be declared in Annual Financial Reports of a company unlike formal Commercial Court disputes that are required to form a part of public disclosures. This will prove to be beneficial for parties who need financial assistance and loans as financial institutions are reluctant to sanction loans for companies that have disclosed pending lawsuit against them.
ADR in the current COVID-19 Pandemic: Opportunities
Resolution of Disputes by alternative methods in times offers a plethora of opportunities for disputing parties. The use of the E-justice System which includes the advanced use of Artificial Intelligence (AI) and Machine Learning will widen the scope of online ADR for matters involving commercial disputes, intellectual property disputes, and monetary disputes. In fact, several Mediations have taken place through the virtual conferencing process during the current COVID-19 pandemic where litigants appeared from the comforts of their homes and offices rather than travelling to Courts.
The weighed-down Courts with case backlogs are burdened with a lot of cases that have been filed during the Covid-19 pandemic. Once businesses start normally post pandemic, it may cause a flood of further litigation. Additionally, travel restrictions, Coronavirus concerns, and downsizing may all affect the disposal rate. It is very likely that Mediation will be linked with the virtual process of conflict resolution even after the pandemic crises has abated. People will be reluctant to gather in public places and face the threat of further pandemic waves. This will prompt potential litigants to strive for widespread use of the ADR techniques via virtual conferencing process. Consequently, I believe that Mediation by virtual conferencing is here to stay.
The Covid-19 crises and its impact on Courts has added to the reasons for litigants to look after their interests rather than being swept away by their emotional conviction about the strength of their cases. A comprehensive methodology and prolific use of ADR is the way forward to achieving the desired growth from the alternative dispute mechanism process.