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Comparison Between Judicial Process and Various Alternative Dispute Resolution Processes & Process of Mediation

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Comparison Between Judicial Process and Various Alternative Dispute Resolution Processes & Process of Mediation 1 Comparison between Judicial Process and Various Alternative Dispute Resolution Processes & Process of Mediation by Smt. K.Prathusha Kumari, I Addl. Junior Civil Judge, Kadapa Introduction: Judicial Process Judicial process is basically “whole complex phenomenon of court working”. Everything done by the Judges in the process of delivery of Justice is called Judicial Process. Judicial process is an adjudicatory process where a third party (Judge/other authority) decides the outcome. Procedure and decision are governed, restricted, and controlled by the Provisions of the Relevant Statutes. In Judicial Process the Judges are called upon to decide contentious issues between the parties strictly in accordance with law and the Constitution. The Judicial Process is a set of interrelated procedures and roles for deciding disputes by an authoritative person or persons whose decisions are regularly obeyed. The disputes are to be decided according to a previously agreed upon set of procedures and in conformity with prescribed rules. As an incident, or consequence, of their dispute-deciding function, those who decide make authoritative statements of how the rules are to be applied, and these statements have a prospective generalized impact on the behavior of many besides the immediate parties to the dispute. Hence, the Judicial Process is both a means of resolving disputes between identifiable and specified persons and a process for making public policies. In every civilized society there are two sets of laws that govern the lives of citizens– (i) substantive laws and (ii) procedural laws. While the substantive laws determine the rights and obligations of citizens, procedural laws provide for the framework for enforcement of the same. Despite the fact that substantive laws are comparatively more important but the efficacy of substantive laws is contingent upon the qualitative deliverance of procedural laws. The latter needs to be efficient, simple, expeditious and inexpensive. Alternative Dispute Resolution Section 89 of the Code of Civil Procedure, which gives the Court the power to refer the dispute for settlement or conciliation was introduced with a purpose of amicable, peaceful and mutual settlement between parties without intervention of the court. The constitutional validity of this section was upheld by the Hon'ble Apex Court in the case of Afcons Infrastructure Ltd. & Anr Vs. 2 Cherian Varkey Construction Co. (P) Ltd. & Ors, reported in (2010) 8 SCC 24, but the frequency with which ADR is utilized for resolution of disputes remains minute, which arises due to lack of knowledge about the same or on account of the reluctance of the parties. The alternate forums accorded under Section 89 are economically more viable as there are relatively lesser amount of transaction costs and thus, there is a need to make people aware about the same. The provision under Section 89 of CPC is an attempt to bring about resolution of disputes between parties, minimize costs and reduce the burden of the courts. It is provided for with the sole objective of blending judicial and non- judicial dispute resolution mechanism and bringing alternate dispute mechanism to the center of the Indian Judicial System. The long drawn process of litigation, the costs incurred by both parties for the same have and limited number of adjudicators has made Alternate Dispute Resolution an important aspect of the Judicial system to ensure swifter and speedier Justice. Arbitration, mediation and conciliation are the main Alternative Dispute Resolution Mechanism which is generally adopted by the people to resolve their disputes in an informal manner. They try to reach a solution by settlement or negotiation with the assistance of a third neutral party and have turned out to be an effective alternative to the litigation process. In the words of Guatam Budhha, "Better than a thousand hollow words is one word that gives peace", which even is reflected in the famous Sanskrit quote “Santosham Paramam Sukham”. Mediation is one of the modes for attainment of 'Peace'. In Tabular Form Section 89 (2) of Cr.P.C Where a dispute had been referred to Arbitration Lok Adalat Judicial Settlement Mediation For arbitration or To Lok Adalat, the For judicial settlement, For mediation, the conciliation, the court shall refer the the court shall refer the court shall effect a provisions of the same to the Lok Adalat same to a suitable compromise between the parties and shall Arbitration and in accordance with the institution or person follow such procedure Conciliation Act, provisions of sub- and such institution or as may be prescribed. 1996 shall apply as section (1) of section person shall be deemed if the proceedings 20 of the Legal to be a Lok Adalat and for arbitration or Services Authority Act, all the provisions of the conciliation were 1987 and all other Legal Services referred for provisions of that Act Authority Act, 1987 settlement under the shall apply in respect shall apply as if the provisions of that of the dispute so dispute were referred to Act. referred to the Lok a Lok Adalat under the Adalat; provisions of that Act; 3 Reference to ADR and Statutory Requirement Section 89 and Order X Rule 1A of Code of Civil Procedure, 1908 require the court to direct the parties to opt for any of the five modes of alternative dispute resolution and to refer the case for Arbitration, Conciliation, Judicial Settlement, Lok Adalat or mediation. While making such reference the court shall take into account the option if any exercised by the parties and the suitability of the case for the particular ADR method. In the light of judicial pronouncements a referral judge is not required to formulate the terms of settlement or to make them available to the parties for their observations. The referral judge is required to acquaint himself with the facts of the case and the nature of the dispute between the parties and to make an objective assessment to the suitability of the case for reference to ADR. Stage of Reference: The appropriate stage for considering reference to ADR processes in civil suits is after the completion of pleadings and before framing the issues. If for any reason, the court did not refer the case to ADR process before framing issues, nothing prevents the court from considering reference even at a later stage. However, considering the possibility of allegations and counter allegations vitiating the atmosphere and causing further strain on the relationship of the parties, in family disputes and matrimonial cases the ideal stage for mediation is immediately after service of notice on the respondent and before the filing of objections/written statements by the respondent. An order referring the dispute to ADR processes may be passed only in the presence of the parties and/or their authorized representatives. Consent: Under section 89 CPC, consent of all the parties to the suit is necessary for referring the suit for arbitration where there is no preexisting arbitration agreement between the parties. Similarly the court can refer the case for conciliation under section 89 CPC only with the consent of all the parties. However, in terms of Section 89 CPC and the judicial pronouncements, consent of the parties is not mandatory for referring a case for Mediation, Lok Adalat or Judicial Settlement. The absence of consent for reference does not affect the voluntary nature of the mediation process as the parties still retain the freedom to agree or not to agree for settlement during mediation. Mediation and conciliation both are an informal process whereas arbitration is more formal as compared to them. In mediation, the mediator generally sets out alternatives for the parties to reach out an agreement. The main advantage of the mediation is that the settlement is made by the parties themselves rather than a third party. It is not legally binding on the parties. 4 Arbitration is a process where the parties submit their case to a neutral third party who on the basis of discussion determines the dispute and comes to a solution. Dispute resolution through conciliation involves the assistance of a neutral third party who plays an advisory role in reaching an agreement. The process adopted by all the three is different but, the main purpose is to resolve the dispute in a way where the interest of the parties is balanced. COMPARISON BETWEEN JUDICIAL PROCESS AND VARIOUS ADR PROCESSES AND PROCESS OF MEDIATION Judicial process Arbitration Mediation 1. Judicial process is an Arbitration is a quasi- Mediation is a negotiation adjudicatory process judicial adjudicatory process and not an where a third party process where the adjudicatory process. The (judge/other arbitrator(s) appointed by mediator facilitates the authority) decides the the Court or by the process. Parties participate outcome. parties decide the dispute directly in the resolution of between the parties their dispute and decide the terms of settlement. 2. Procedure and Procedure and decision Procedure and settlement are decision are governed, are governed, restricted not controlled, governed or restricted, and and controlled by the restricted by statutory controlled by the provisions of the provisions thereby allowing provisions of the Arbitration & Conciliation, freedom and flexibility. relevant statutes. 1996. 3. The decision is binding The award in an A binding settlement is on the parties. arbitration is binding on reached only if parties arrive the parties. at a mutually acceptable agreement. 4. Adversarial in nature, Adversarial in nature as Collaborative in nature as as focus is on past focus is on determination focus is on the present and events and of rights and liabilities of the future and resolution of determination of parties. disputes is by mutual rights and liabilities of agreement of parties parties. irrespective of rights and liabilities. 5. Personal appearance Personal appearance or Personal appearance and or active participation active participation of active participation of the of parties is not parties is not always parties are required.
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