- INTRODUCTION :
Conflict or dispute is a natural and inevitable part of all human social relationships. Conflict occurs at all levels of society from interpersonal, family, tribes to national and international levels. The existence of conflict and dispute presuppose the existence of dispute resolution process also.ADR can be a process to try to resolve conflict. ADR may be a pre-condition of litigation. A dispute must pass through the stages of ADR before entering into litigation.
2.WHAT IS ADR ?
The term “alternative dispute resolution” or “ADR” is often used to describe a wide variety of dispute regulation mechanisms that are short of , or alternative to , full –scale court processes or judicial process. In other words, when disputes between parties are resolved through means which are alternative to formal litigation, this is called alternative dispute resolution. ADR is a process which may be freestanding (non-judicial) or court annexed (judicial), binding or non-binding, formal or informal, mandatory or voluntary in nature. It is to be emphasized that the term “ADR” is misleading in a sense that it is not always alternative to formal litigation and very often it is a part of litigation particularly for those ADR processes which are court connected. Professor Thomas J.Stipanowich states that the name ADR is an outmoded acronym that survives as a matter of convenience only.1 A California Task Force observed, “not only” is “alternative” unhelpful alternative to what? But “appropriate” better conveys the concept of “method best suited to resolving the dispute”. 2 Professor Jean R.Sternlight has preferred the phrase ADR as “Appropriate Dispute Resolution” rather than “Alternative Dispute Resolution”.3
1.Thomas J . Stipenwich , ADR and the “Vanishing Trial”;The growth and Impact of “Alternative Dispute Resolution”, Journal of Empirical Legal Studies ,Volume1, Issue3, 843-912, November 2004 at page 845.
2.Report of the Task Force on the Quality of Justice Subcommittee on Alternative Dispute Resolution and Judicial System, Alternative Dispute Resolution in Civil Cases 3 (1999) ( hereinafter California Report on ADR In Civil Cases)
3. Jean R. Sterlight, Is Binding Arbitration a Form of ADR?:An Argument That the term “ADR” has begun to uotline its usefulness,2000,J.Disp.Resol. P-97.
3. Purposes of ADR :
The ADR practitioners Guide spells out how ADR can serve different objectives. It explains that ADR systems may be designed to meet a wide variety of different goals. Some of these goals are directly related to improve the administration of justice and rule of law. Some, however , are tensions related to other development objectives , such as economic restricting or the management of and conflicts in communities. Efficient dispute resolution procedures may be critical to economic development objectives where court delays or corruption inhibit foreign investment and economic restricting.
A) Purposes in the context of Rule of Law :
Within the context of rule of law initiatives , ADR programs can :
v Support and complement court reform
v By-pass ineffective and discredited court system and procedure
v Increase popular satisfaction with disputed resolution
v Increase access to justice for disadvantaged groups
v Reduce delay in the resolution of disputes
v Reduce the cost of resolving disputes
B) Purposes in the context of other developments :
In the context of other development objectives, ADR programs can :
v Increase civic engagement and create public processes to facilitate economic restructuring and other social change
v Help reduce the level of tension and conflict in a community
v Manage dispute and conflicts that may directly impair development initiatives
Experience suggests that ADR programs can have a positive impact on each of these development objectives, although the extent of the impact is very much dependent on other conditions within the country and the fit of the design and implementation of the program with the development objectives.
4. UNDP: Access to Justice, Practice Note 9.3.2004 at page 4
5. Thomas J. Stipanwich , ADR and the “Vanishing Trial” ; The Growth and Impact of “Alternative Dispute Resolution”,, journal of empirical legal studies ,volume1,843-912,November 2004 at page 847
6. Study circle Discussion Guide on Alternative Resolution by Study Circle, August 2003
4. Merits of ADR :
Alternatives Dispute Resolution has some important merits and these advantages have given rise to some theories of ADR. Principal theories are:
- Win –win strategy
- Cost effective
- Absence of confrontational attitude
- Less time consuming
- Ensures justice and social norms
- Resolves disputes rather than settling
5. Demerits of ADR:
There are some demerits such as:
- It is not necessary the case that replacing or supplementing litigation with ADR could reduce corruption. To the extent that a culture of corruption exists , mediators , conciliators or arbitrators could fall prey to the same temptations as judge.7
- Although it is often true that ADR is less expensive than litigation, this does not necessarily mean that providing ADR solves problems of access to justice. Depending on the type of ADR and quality of the results, ADR may not provide access to justice at all.8
- In cases of informal ADR modes some elements of rule of law are mostly absent. For instance traditional Salish system in Bangladesh is dominated by rich and influential people and there is always a question of bias and arbitrariness.9
- In some types of disputes ADR method is not at all appropriate for example in cases of systemic injustice, discrimination or violation of human rights etc.10
- It is argued by some critics that the essential attributes of due process of law are often not followed in some forms of ADR. While the expansion of ADR has given some an
7. Ibid at page -585
8. Ibid at page -587
9. William S. Boyd School of Law, University of Nevada, Las Vegas at page – 575.
10. Jean R. Sternlight , Is alternative Dispute Resolution consistent with the Rule of Law?,56.De Paul Law Review 569(2006), William S. Boyd School of Law , university of Nevada , Las Vegas at page 591.
opportunity to resolve their disputes in an inexpensive fashion, some uses of ADR that have proven to be a tool to disenfranchise vulnerable parties.11 In the USA courts occasionally have refused to enforce the result of ADR proceedings that were so one-sided or unfair as to be unconscionable or inconsistent with fundamental due process .12
- ADR does not set precedent, define legal norms or establish broad community or national standards nor do they promote a consistent application of legal rules.
- ADR programmer does not well in the context of extreme power imbalance between the parties.
6. Limitations of ADR:
Although ADR programs can play role in many development efforts, they are ineffective and perhaps even counterproductive, in saving some goals related to rules of law initiatives. 13 In particular, ADR is not an effective means to the following goals:
ü ADR programs do not set precedent, define legal norms or establish broad community or national standards, nor do they promote a consistent application of legal rules.
ü ADR programs can not correct systemic injustice, discrimination or violations of human rights.
ü ADR programs do not work well in the context of extreme power imbalance between parties.
ü ADR settlements do not have any educational, punitive or deterrent effect on the population.
ü It is inappropriate to use ADR to resolve multi-party cases in which some of the parties or stakeholders do not participate.
ü Not necessarily an instrument to reduce corruption.
ü Not consistent with rule of law.
11. Katherine, V. W. Stone, Rustic Justice: Community and Coercion under the Federal Arbitration Act, 77U.NCar.L.Rev.991 (1999) (arguing that courts should impose higher scrutiny before enforcing arbitral awards when they arise from parties in unequal power relation).
12.Kathrine,V.w.Stone,Alternative Dispute Resolution, Research paper No.4-30,University of California, Los Angeles School of Law, Public Law & Legal Theory Research Paper Series , at page 6( suggestion that it is appropriate to determine which types of procedures are appropriate for different types of dispute and to design informal procedures that retain the essential attributes of due process that our civil justice have developed over the past many hundreds of years.)
13. Ibid at p-174
7. Advantages of ADR over litigation:14
- Less time from beginning of controversy to resolution of dispute.
- Less cost because of lower attorney fees less time away from work by corporate employee’s lower court costs for the prevailing party.
- Parties can select a more experienced decision maker or facilitator than being randomly assigned to a judge.
- Parties are able to select where the dispute will be heard: they are not bound to use the court system where each party does business.
- The informality of ADR methods is less formidable than are the evidentiary rules governing court procedures.
- ADR is more confidential than litigation which becomes a matter of public record.
8. Disadvantages of ADR as compared to litigation:
- The longer time tram for litigation may be advantageous to one of the parties if it will have to make a payment to the other party once the dispute is resolved. Passage of time naturally decreases both the cost to the defendant and the value of the plaintiff’s recovery.15
- The use of discovery in litigation allows each party to obtain valuable information from the other party.
- The rule of law generally governs the dispute; if the law is on one party’s side. The case is more likely to be decided in that party’s favor.
- Only the courts can establish precedent. If a party has concern about future cases as well as the present controversy. Litigation may establish the needed precedent.16
- Litigation is generally preferred if the case involves new or complex legal theories.
- Litigation is more public and thus may be used to let other parties know dispute will not be settled for their nuisance value.17
14. Pea. Roe & W.Shefield,ADR,P85-86
15. CPR Institute for Dispute Resolution, Law Firm Practices in ADR: 1994 Survey Findings (“CPR Survey”) p -2
16. Frank M. Coffin, Appeal’s Courts, Layering and judging , 1994, p-63,317
17. F. W. Mc Carty & J. W. Bag by, the Legal Environment of Business. P-107
9. Civil Litigation and ADR:
Both litigation and ADR constitute important segment of the legal system. Courts are established in the constitution as well as statues as a forum for resolving dispute. 18 The courts are open to all people. Although litigation is costly and inefficient, time consuming, the courts play an important role as a check on the other branches of the Government. It enforces the rights of the minority and weak.19 Most people support a strong and independent court system because it forces the government and other people in society to act according to rule of law.
ADR technically are generally fairly quick, not too expensive and private. ADR involves the parties in a non adversarial environment, encouraging each party to participate in seeking solution that both period. Effective dispute resolution management is very important for peaceful environment where people live.20
ADR essentially refers to lies adversarial methods of dispute resolution, where used as a part of a court process or as an alternative to it.
There are several basic differences between the adversarial method of dispute resolution followed in civil litigation and the ADR processes. There are as follow:
First, in the adversarial process, the judge(as a neutral party) makes a decision after hearing from the disputing parties, whereas in ADR, the hearing officer may help formulating the result during the process .21
Secondly, in adversarial litigation, one party wins and other loses. By contrast, ADR methods allows for each party to benefit from the resolution.22
Thirdly, whereas ADR requires communication and trust between the parties, the adversarial system nurtures and animosity.23
18. Thomas J. Stipanowich, ADR and the “Vanishing Trial”: The Growth and Impact of “Alternative Dispute Resolution”, Journal of Empirical Legal Studies, Volume1,Issue3, 843-912,November 2004at page 847.
19. Ibid at page 591
20. Mediation-A Necessary Element in Family Dispute Resolution? Peter Lang, Berlin, p-37
21. Jean R. Sternlights, Is Alternative Dispute Resolution consistent with the Rule of Law? P-56.De paul Review 569(2006),William S. Boynd School of Law, University of Nevada, Las Vegas at page 575.
22. Boulle and Nesic, Mediation: Principle Process Practice (2001) p- 14-21.
23. Warren E. Burger, Agenda for 2000 A.D. : A Need for Systematic Anticipation,70 F.R.D. 83,92.
Finally, the parties in litigation expect their case will be governed by a general legal principle found in a status, precedent and administrative regulation. In an ADR matter, the outcome of the dispute need not be based on general legal principles. It follows, in most cases, the legal rules.24
ADR can support a mission objective to reform the court system in several ways. ADR can be used by the judiciary to test and demonstrate new procedures that might later be extended to or integrated with existing court procedures. 25ADR can be created as an option within the judicial system, either associated with the courts as a way of managing existing caseloads or separates from the courts to provide dispute resolution for conflicts or constituencies not well served by the courts. 26 If the main problems with the courts are complex and inappropriate procedures, rather than institutional corruption or bias, ADR programs can provide streamlined procedures to accelerate case disposition. ADR may be more effective than the courts for addressing particular types of disputes, such as ethnic conflicts, public environmental disputes or family disputes. It can increase access to justice for disadvantage people.27 It is helpful for reducing the cost to parties, reducing the formality of the legal process, overcoming the barrier illiteracy, serving rural populations, countering discrimination and bias in the system.ADR can reduce delays which are caused by complex formal procedures. Many studies of developing country ADR systems offer evidence that the system have been effective in processing cases quickly, at least relative to traditional court system.
24. Frank E. A. Sander, Varieties of Dispute Processing (1976) p-111\
25. Katharine, V. W. Stone , Alternative Dispute Resolution, Research paper No.4-30 , University of California, Loa Angeles School of Law, Public Law & Legal Theory Research Paper Series , At page -5
26. Dina M. Siddique, Salish and the quest for Gender Justice: An Assessment of Strategic Inventions in Bangladesh (2006), p-11
27. Dina M. Siddique, Salish and the quest for Gender Justice: An Assessment of Strategic Inventions in Bangladesh (2006), D. c. p-7