“Let there be peace on earth and let it begin with me…”
We had adopted the common law legal system from the British, which we practice now.
Under this system, what usually happens is that there are two disputed parties and the court is set in motion by the one that is aggrieved. Each party’s case is presented before the judge by the advocates (who are experts in court craft). The judge perceives the case, sifts the evidences, and hears arguments from both sides in order to arrive at a logically and legally sound verdict. Post that, both the parties are bound to abide by the given judgement, at the peril of legal sanctions, if disobeyed. Since the parties are represented by lawyers, they are kept aloof from the judge as well as from one another. And the result of every decision is that one party wins and the other loses. The ‘dispute’ is liquidated and justice (according to the court) is done, but the ‘conflict’ is left unresolved. [Note: Conflict is different from dispute. A conflict becomes dispute when legal proceedings are initiated]
As a consequence of which the differences between the parties continues to subsist, the competing interests of the parties remains unresolved and inter – personal relationships become more hardened. This system does not aim at ‘resolution’ of the conflict; instead, it aims at upholding one and rejecting another. It’s like a boxing match, where only one party wins, if it wins at all.
Even though, this system, with excellently drafted laws like Indian Evidence Act, Indian Contract Act etc., delivers justice in 99.9% cases, but the whole process is so complex and full of formalities that it takes a long time in deciding the final verdict of any case.
Our judiciary has a very formal approach. The point it totally neglects is that people now have no time for these formalities. People now are in need of an informal but an efficient solution. The court system is based on the de – humanised concepts given by Karl Marx and Max Weber. A simple justice demands a system of redressal of disputes, where the emotions, opinions, perceptions and interests of the litigant are taken into consideration, while moving towards an amicable solution.
Another problem that our system faces is lack of technology and also along with that the technicalities needed in solving the modern day disputes, keeping in mind the current generation that is technology – pro. Our judiciary needs to catch up with the fast pace the society is moving forward with.
Today the world has no time, time is priceless. Everyone is running, competing with one another, we are amidst a rat race and in such a situation man has become an ‘impatient listener’.
It is a good and fair settlement when neither party likes the outcome, but agree to it.
Mary Parker Follet, human – relations theorist, talked of settlement of disputes through either innovation (i.e., a situation where the solution to the conflict would be the outcome of taking the interests of both the parties into consideration) or compromise (i.e., when both the parties compromise on certain part of their interests and agree with the final outcome thereby resolving the conflict).
ADR: The concept and its benefits
Innovation, as a method of conflict resolution is rare and ideal, but compromise is nowadays known as the Alternative Dispute Resolution (ADR).
ADR isn’t new to India. It has been a practice inherent in our culture through the Laws of ‘Manu’ and the Muslim Laws. Our ‘Panchayat’ system (where elders of the village decide the conflicts between the inhabitants of the village) is based on the concept of peaceful settlement of conflicts.
ADR is basically a conflict resolution process, which is an out – of – court settlement. In this the two parties in dispute willingly come together with the aims of arriving at a mutually agreeable settlement of their dispute with the assistance of a neutral third party mutually chosen. A successful completion of proceedings results in a mutually agreed settlement.
The advantages of ADR over litigation are that:
- It is cost – effective
- Time saving
- Avoids all kinds of technicalities and procedures
- Is informal in nature, i.e., it takes into account the emotional interests and perceptions of the parties.
- It is kept confidential so that the parties feel free to disclose essential facts
- The end result is usually acceptable to both the parties
- Provides greatest possible satisfaction to both the parties
- The relationship and the business between the parties improves
- It does not close the option of litigation
- The settlement is treated on par with a decree of a court
- The process is future – based and aimed at a win – win situation.
The different kinds of ADR methods are Arbitration, Conciliation, Mediation, Negotiation, Mini – trial, Online Arbitration, Fast – track Arbitration, Mediation – Arbitration, etc.
ADR is a people’s participatory approach to dispensation of justice through settling disputes. Remember the difference between conflict and dispute, ADR not only resolves the dispute, but tends to resolve the conflict that has given rise to that dispute. The ‘D’ in the ADR stands not only for dispute but also for democratic decentralisation and de – professionalization.
The main objective of ADR is to encourage reciprocity and it is also very essential in establishing healthy business relationships. There is a need to develop a will to accommodate other parties’ genuine interests, a faith in the others’ objectivity and capacity to reason, to evolve a culture to sit and together and straighten out the differences amicably. Business interests are better served by sustaining business partnerships, not by losing partners. The strength of a family or of an organisation arises from the cohesion of its members, and not compromise from dissipation. ADR helps us learn these fundamentals and thereby promotes peace and welfare in the society.
Let the world become a patient listener, which it never had been before. Let us learn to sit and talk out the matter, and let us avoid conflicts, fights and wars. Let us all become more sensitively responsive enough to the other people’s problem.
National Law University, Odisha
 Sarvesh Chandra, Alternative Dispute Resolution – What it is and how it works, edited by P.C.Rao & William Sheffield, The International Centre for Alternative Dispute Resolution, Universal Law Publishing Co. Pvt. Ltd., pg no.
 Supra note 1.
 Supra note 1.
 Supra note 1.