This write up covers the very basicsof ADR and is meant for the uninitiated. More analytical write ups will follow in due course of time.

Despite the government and the Supreme Court laying increasing emphasis on employing alternate dispue reolution mechansims like arbitration, concilation and mediation, the pace of their adoption seems to be less than satisfactory. This largely seems to stem from the reticence of Indian lawyers and litigants having a litigatious mindset.

This diffidence caught my attention during a conversation with a friend on Holi. He is currently practising in the Delhi High Court. That conversation prompted me to pen this blog, as an attempt to introduce ADR to the uninitiated.

According to an estimate of the NITI Aayog, it would take the Indian judiciary 324 years to resolve all the pending cases if no new fresh cases were to be filed. The arduous process of litigation in Indian Courts burns a hole in the pockets of the litigant and often spans over decades.

The importance of speedy justice cannot be over exaggerated- it ensures retributive justice and has a deterrent effect in the society at large. It also benefits the economic prosperity of the society- foreign multinational corporation’s usually shy away from jurisdictions with cumbersome legal processes.

The institutional and systemic lacunae responsible for this legal logjam will take decades to resolve. An efficacious and swift alternative to long drawn litigations can be alternate dispute resolution mechanisms.

ADR, as the name suggests provide ancillary mechanisms for the parties to settle their differences. Unlike traditional litigation which is adversarial in naure, ADR is based on the principles of negotiation. Thus, instead of an “I win, you lose” approach, both the parties make some compromises while still safeguarding and furthering their core interests.

ADR largely comprises of three mechanisms- arbitration, conciliation and mediation. In arbitration the parties mutually decide to appoint an arbitrator. Usually, both the sides appoint an arbitrator each, these two arbitrators furhter appoint a third arbitrator. Thus, more often than not an arbitral tribunal consists of three arbitrators.

The benefits of such a meachanism are many- since the parties appoint the arbitrators themselves, they can appoint persons possessing special skill and knowledge in the cause of contention.   Thus if the contention relates to drilling of oil in the high seas, appointing persons having expertise in the petrochemical industry would allow them to better appreciate the nuances and intricacies of arguments posited by the counsels for either sides, resulting in a more reasoned judgement. A judgement of an arbitral tribunal is called an “arbitral award” and is usually final and binding. This extinguishes the scope of frivolous appeals and dilatory litigation perpetuated due to the the infamous adjournment culture of Indian lawyers. In India the domestic arbitral proceedings are dictated according to the Arbitration and Conciliation Act, 1996.

Mediation and conciliation seem largely similar, and are often used interchangibly- a third party; usually already privy to the facts and circumstances of the case seeks to effectuate a constructive dialogue between the parties. However, there is a difference of approach in the two mechanisms.

In mediation, the third party appointed as a mediator regulates the dialogue process and gives their active input while steering forward the negotiation process. But the mediator’s role is limited to evolving solutions.

Per contra, in  cases of conciliation the third party’s role is greater. In addition to evolving solutions, the conciliator tries to persuade the parties to arrive at the solution as suggested by him. Thus a conciliator plays a more active role in crafting an amicable settlement.

As India slowly develops into a mature economy litigations are bound to increase. Thus ADR can serve as a useful tool to supplement conventional litigation. It is hearty to see that initial steps have already been taken- Courts maintain a list of empanelled arbitrators for the parties to refer and encourage mediation in compoundable offences. The government too, for its part has taken policy decisions which seek to develop India into a hub of arbitration with plans of establishing an international arbitration centre in GIFT City of Gujarat. It is essential that comprehensive legislations addressing gaps in existing legal framework are enacted while taking inspiration from global best practices and model laws like ICSID and New York Convention.