ALTERNATIVE DISPUTE RESOLUTION -GLOBAL INITIATIVES.

As  the judiciary is one of the three estates of state-the  other two being the legislature and the executive- it can be said that the  dispute settlement process has been by and large  a  virtual state  monopoly. This  has been so because of the  maintenance  of peace and order was always treated as one of the primary concerns of  the state and the existence of disputes between the  subjects is  a potential threat to the peace in the society. However  since times immemorial, state has left certain areas of dispute  settlement to the private domain wherein disputant parties could arrive at solutions acceptable to them through negotiation, conciliation and arbitration. This is also true in the case of the other  state monopoly viz legislation. Though state regulates conduct between the  subjects  through legislation there have always  been  areas were the state left it to individuals to work out there relations interlay through private action like contracts.

While the emergence of doctrines like socialism and state control of  areas  of  production, distribution and  consumption  and  the relatively milder concept of 'social welfare state' have produced a  swing  in favour of a wider role to the state in  vital  areas concerning  social relations, the late 90's have witnessed  a  reverse  swing in favour of widening the domain of private and  non state action even in certain important and vital areas which have been of state activity. This trend also extends to dispute settlement mechanisms.

Thus  it can be said that statutory recognition of the  processes like negotiation, conciliation and arbitration is a form of privatization  of dispute settlement processes and mechanisms  in certain areas wherein state involvement is considered unnecessary or even undesirable. This trend is becoming increasingly  utilizes in  the  democratic countries world over. The catalysts  for  this paradigm shift are not only individuals and institutions but also state  organs  including most importantly the  judiciary. Even  in cases  of litigation the courts often encourage the  practice  to arrive  at an out of court settlement. More recently the trend  in India  and  elsewhere is for the courts to refer the  parties  to arbitration/conciliation even at the threshold stage of litigation.

Hence  it  is submitted that litigation and  alternative  dispute resolution  (ADR)  should not be looked upon  as  affecting  each other  and as one leading to judgement and the other  to  settlement. Often in India and elsewhere retired judges act as arbitrators  and their legal expertise and financial training  do stand in advantage in imparting 'judicious' approach to arbitration. Non  lawyers  arbitrators  like   engineers, chartered accounts  and  doctors will have an advantage if they  have  some legal  orientation also because in most cases interpretation  and application   of  same  legislation  are  involved   if   nothing else, atleast of Arbitration and Conciliation Act of 1966.

A symbiosis between litigation and ADR process is necessary for a holistic approach towards the objectives of amicable and  durable dispute settlement. A legalistic, technical and inflexible approach to  ADR  of the litigative mind set is to result  in  long  drawn examination  of  witnesses, oral  arguments, adjournments  and  'reversed' awards, not only the very purpose of ADR will be frustrated and defeated but in the process the confidence in  the judiciary  as an institution will receive a setback. Hence  it  is desirable that an integrated approach is evolved by all concerned to  see  that judicial settlement and ADR adopt methods  so  that they  can work in tandem in the changing scenario. Little  purpose is served if lip service is paid to ADR and pious platitudes  are uttered in praise of it, if "vested interests" were to subvert  it with old mindsets and the older methods.

GLOBAL MOVEMENT FOR ADR

That ADR has become a global phenomenon is evidence by the  articles published in the special issues of the modern law review  of 1993 which has been included in the material supplied to all  the participants. The  concept of "co existential justice" evolved  in Japan  is a case to the prove the point that a highly  industrial societies accustomed to a system different from common law system could  adapt  itself  to  a  "second  track"  dispute  resolution system. Japan has introduced ADR methods as adjuncts to course and administrative  services. The court have set  up  Conciliation Boards which have resolved substantial number of disputes.

It is said that China has established the second largest international trade arbitration agency in the world and is gives greater importance to Conciliatory justice mainly in commercial matters.

In common law countries the ADR movement found a fertile virginal field  as the system of settlement of disputes through  reference to third parties has found a congenial ambience in the democratic structure  while  'class',  'social',  'collective'  and  'public interest  litigation' proved to be one form of mitigation of  the rigors of one common law concept of 'locus standi' and helped in making  "access to justice" more meaningful, and the evolution  of ADR  techniques  and methods have  substantially  contributed  to taking  "justice to door steps" and to alleviating the plight  of the litigant harassed by innumerable delays in justice  delivery, serpentine  legal  procedures, and more than  anything  else  ,the rivalry which results from litigation.

In the United Kingdom the developments in ADR are well  discussed in  Henry Brown Report on Alternate Dispute  Resolution  prepared for the courts and the legal services committee of the Law

Society and in one report of one committee chaired by Lord

Justice  Beldam prepared for the General Council of  the  Bar. The Brown  Report  makes the distinction  between "adjudicatory  ADR processes (i.e. arbitration) and non adjudicatory and hybrid process (i.e.  mediation/conciliation, mini trails  etc) the   report strongly  recommends  special pedagogic courses in  teaching  and training in ADR and includes a five-year action plan which anticipates fast growth off ADR.

The  Beldam  Report is in a way ingenious. It in  fact  tries  to integrate into the existing court system the 'alternative dispute resolution'  process  and enthusiastically supports  a  mediations conducted  by lawyers within the court system. Many  organizations like  Course  for  Dispute  Resolution (CEDR) and  this  Chartered Institute of Arbitrators.

As  can be expected ADR averment has become the focal  point  of academic  discussions  public  debase  and  institutional  growth 'access to justice' is not looked upon as a social right but as a social problem and are of the fundamental solutions to the problem  is  to take most of the disputes out of the  courts  and settle  them through ADR.ADR has become an important  subject  in the  law  school curriculum and  the  universities (Peperdine  for instance) have prepared specialized teaching and reading material on  these  subjects. Retired Judges like  William  Sheffield  have become arbitrators/conciliators putting their forensic and  judicial skills to good use.

In Canada also ADR movement has caught up and the rules of  Civil Procedure and rules common to Common Law procedures (i.e.  excluding provinces  like Quebec with continental  legal  systems) encourage the  parties to negotiate the outcome  litigation. As  Prof. Watson points out "it is now very common for both parties to settle" and it  is" rare for cases to go to trail with no offers being  made" Judicial  mediation  with pre-trial conference is  an  innovative feature  in  Canada  and is family matters  mediation  is  either voluntary or even mandatory.

ADR  is indeed a part of Indian native genius (volkgeist) even  at the  grassroot levels. Like democratic institutions, dispute  settlements  through third parties has to grow naturally and  cannot be  imposed or superimposed. Like elsewhere ADR preceded  Judicial processes  and  now  all over the world the cycle  has  run  full circle, the UNICITRAL Model law and ADR of 1985 proved to be  the catalysts  in the emergence of domestic legislation. In  countries like  UK, Canada, India etc ADR is particularly found  suitable  to international commercial disputes because of problems of lack  of uniformity  and  conflict of  laws, unfamiliarity  with  different domestic legal systems, culture shock etc.

In  domestic  matters, in areas  like  medical  negligence, family disputes, accident claims, and commercial disputes  are especially suited for ADR.

The  future  for ADR is very  promising, but  certain  fundamental questions  remain  to be asked and  answered. First, what  are  the areas that ought to be withdrawn from litigation processes and be brought under ADR. Second, what methods of  ADR (arbitration, conciliation, mediation etc) are particularly suited to what area of non-litigative  disputes? Third, who are the persons and  what  special skills and qualifications are to be chosen for various categories of disputes?

One  thing  seems  to be very clear, it will be  unwise  and  self defeating  to confine ADR to lawyers and judges only. ADR must  be evolved   but   into   a   pleura-disciplinary  framework   where engineers, doctors, chartered accounts, social scientists etc  will play their roles in the appropriate disputes situations.

A  highly trained and skilled arbitrator and conciliator must  be built up to constitute a body of ADR professionals. These  professionals  will be trained and tuned to the new system  of  cutting delays  and rendering awards within a time-frame to  ensure  that the  second  track justice does not degenerate with  second  rate justice, moreover  safe-guards  must be built up  to  guarantee  a national  and global minimum of standards of ADR  procedures  and values. If this is done there is no reason why ADR will not flourish with a viable justice delivery system which is effective, less expensive and least time consuming.