Alternative Dispute Resolution (An Alternative Access To Justice)
Alternative Dispute Resolution commonly known as (ADR) refers to ‘any means of settling disputes outside of the court room’. It is an effective and expeditious substitute for the resolution of disputes through recourse to mediation, arbitration or conciliation centers particularly in disputes of civil nature since it is not generally available for criminal cases which are dealt with by and on the behalf of the State in criminal courts.
In modern times, the sphere of law has expanded to encapsulate new horizons, ADR is most beneficial, speedy and inexpensive mode of resolving disputes among litigants. It is satisfactory for litigants as it is generally based on the facts of the case rather than technicalities of law. It has been observed that during litigation, aggrieved parties suffer from the loopholes and lacunas existing in law whereas ADR minimizes such possibilities by not allowing procedural technicalities hinder substantial justice.
Another factor that goes in favour of ADR system is its inexpensive nature since hiring the services of a reasonably good lawyer costs more than an ordinary individual can afford. Hence, ADR provides a suitable alternative for the majority of the individuals particularly in cases involving family disputes or matters which do not involve high stakes.
Prolonged litigation in ordinary courts is another factor that causes agony, adds to the suffering of litigants and also adversely affects the trust of the general public in the legal system. In many cases, genuine litigants cannot get speedy justice, and the delay in justice amounts to denial of justice. It is well known at least in Pakistan that civil litigation may last for decades and involve generations. Therefore, some of the renowned law experts have correctly observed that official court system in civil disputes should only be used as a ‘last resort’ in resolving disputes.
In a famous English case, Kinstreet Ltd v Belmargo Corp Ltd, it was held that judges can terminate any court proceedings if they feel that the issue can be resolved via ADR regardless of the opinion of the parties involved. This shows that judges too have a confidence in the ADR system.
ADR has multiple advantages but it too has a responsibility to proceed with care by following the norms of ‘natural justice’. ADR is no panacea, nor is it cost free but can definitely play a vital role in opening the doors to justice.
Voluntary, timeline, good-faith, inexpensive and confidentiality are some basic traits of ADR. Alternative Dispute Resolution takes many forms all of which serve a different purpose, effectively.
ADR generally includes negotiation, mediation and arbitration.
Negotiation involves only the disputing parties. The outcome of a negotiation is reached by the parties together without recourse to a third party. No party is forced to participate in the negotiation process. The parties are free to accept or reject the outcome of such negotiation and can withdraw at any time during the process. There are no prescribed rules in negotiation. The parties are free to choose any rules whatsoever.
In Mediation, an impartial person called a ‘mediator’ helps the parties to settle their disputes by a process of discussion and narrowing their differences. The mediator does not decide the dispute but only helps the parties to arrive at an agreed solution. The outcome of such mediation is not binding upon the parties involved, they are free to accept or reject it. There is no binding decision without both parties agreeing to one.
Arbitration, however, is best in instances where the parties want another impartial person to decide the outcome of their dispute but would like to avoid the formality, expense and time of litigation. In Arbitration, a neutral third person called an ‘arbitrator’ hears the arguments and evidence from both sides and then decides the outcome of the dispute. This process is less formal and technical than a trial and the rules of evidence are less rigid. Once the Arbitrator has arrived at a decision, it is binding upon parties whether they agree with it or not.
In recent past, Chief Justice of Lahore High Court, Justice Mansoor Ali Shah has taken radical steps to overcome this menace of long lasting litigation to provide speedy justice to suffering litigants. Alternative Dispute Resolution (ADR) Centers have been established throughout the province of Punjab in order to dispose of the cases much earlier than the ordinary courts without following the lengthy judicial process.
The newly developed Alternative Dispute Resolution (ADR) Centers are open across all 36 districts of Punjab and the parties willing to settle their disputes earlier can use the services of their respective ADR Centers. The primary purpose of establishing ADR Centers is to provide mediation with the consent of disputing parties which will ultimately decrease the burden of cases on courts along with being cost and time effective. The judges providing their services in such Centers are specially trained in the field of ADR by the Punjab Judicial Academy.
It can rightly be said without any reluctance that the establishment of ADR Centers in Punjab is a commendable move by the higher judiciary in the Province and is a major milestone. It was a much-needed initiative and one can only hope that the other provinces will soon follow suit.
The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any other organization with which he might be associated.