Alternate Dispute Resolution – an Introduction

What is dispute??

 Differences of opinion
 Falling out with other party
 Small alterations

In legal angle, it can be considered as situational or contextual disputes.

In logical sense a dispute means an act of omission or commission when one party raises a
contention of law or fact.

Arbitration Act 1940 defines dispute as that if one party asserts a right and the other party
repudiates the same.

Justice Field in G. Chander Moitra v. A sayad. “ defined dispute can be treated as a reasonable
one or a bonafide one, whether it should be between the parties who have each some
resemblance or right or supposed right.

Litigation

Litigation means a law suit or one which is concerned with a party to a litigation or a lawsuit.
Litigation may be between persons or there is discordance between the law of one place and
other place or type or country and that of another place or nation. (different in different nations).

Dispute also refers to struggle or quarrel between parties where one party asserting and the other
party denying the liablity.

Causes of Disputes

 Psychological factors
 Sociological factors
 Economic factors
 Political factors.

Disputes 1. Legal 2. moral

Other factors leading to disputes are

Various types of disputes like between individuals, institutions and nations which also result
into the intra continental, intra national disputes.

 Failure to fulfill the conditions of agreement leads to disputes.

 Breach of contractual provisions creates hurdles and disputes between the contracting
parties.
  Breach of express warranties between the seller and buyer, owners and defaulters.
 Breach of implied warranties.
 Fraud and intentional misrepresentation of facts.
 Negligent misrepresentation.

Litigation – considered as the onward development of dispute.

Negotiation – mediation – conciliation – litigation

“The parties have to choose the path of litigation when nothing else works.”

Litigation or Judicial dispute resolution – settlement of disputes through courts.

Characteristics of JDR

 Adjudicates the litigations

 Done through courts
 Administered by judges in courts
 Advocates assists judges in delivering justice.
 JDR is based on law.
 Hierarchy of courts is required to protect the interests and rights of citizens.
 Have jurisdiction and venue.
 There is scope of rectification in decisions through appeals.
 The courts of record have power to issue to any person or authority directions, orders or
writs.

Operating principles of Judicial Dispute Resolution.

 Party participation and control.

 Reasoned decisions
 Trial – examination in chief – cross examination – Re – examination – arguments.
 Finality of judgment
 Adversary process – appeals.

Advantages of Judicial Dispute Resolution

 The judicial officer will be highly qualified lawyer with expertise and objectivity.
 Established rules and procedures result in cases being presented to the best advantage,
including detailed enquiry into the facts.
 Principles applied by the Courts are clearly discernible and reasonable; (4) Courts have
dignity, authority and attract public confidence;
 Court proceedings can sometimes spur settlement negotiations;
 Legal aid is available.
DISAVANTAGES OF JUDICIAL DISPUTE RESOLUTION

 Where the dispute is between individuals regarding matters on which they do not want an
acrimony before the public eye the Judicial Dispute Resolution is not desirable as it is
open to public viewing or public reporting:
 Differences are highlighted and parties sometimes take extreme position in the
adversarial atmosphere;
 In many cases of Judicial Dispute Resolution, litigation causes concern, anxiety and
stress;
 Litigations usually end in a winning of a party and losing of another party and
compromises are rare in Judicial Dispute Resolution;
 The delays are endemic and taking into account the appeal procedures, no litigant can
expect finality within a reasonable time;
 The litigation in Judicial Dispute Resolution involves high costs;
 Overcrowding of Court dockets, mounting arrears of cases awaiting disposal, the
burgeoning backlog and the sheer magnitude of the litigation explosion had eroded the
public confidence in the Judicial Dispute Resolution. Public perception of delayed justice
being denial of justice had raised question marks on some of the basic assumptions of the
Justice Delivery system

(Advantages of ADR) the benefits/advantages of ADR system are summed up

1. Advocates of ADR believe that it is superior to a formal litigation in Courts.

2. ADR is generally faster and less expensive.
3. ADR is based on direct participation by the disputing parties. 4. ADR processes are designed
and defined by the disputants with the help of third party.
5. ADR delivers increased people's satisfaction.
6. Most ADR mechanism based on an integrative approach.
7. ADR process is less competitive.
8. ADR tends to generate less ill will between the parties.
9. ADR processes are more cooperative.
10. Outcome of ADR is easy to comply with, because it is voluntary mode. encourages
compromise which good
11. ADR maintaining-harmonious relationship between the parties.

The ADR system contains certain Limitation/disadvantages; however, these are as under

(i) ADR encourages compromise, which may not be appropriate for others.
(ii) out come of ADR is not a precedent,
(iii) ADR settlements are private, cannot be subjected to public scrutiny,
(iv) ADR programme cannot correct systematic injustice,
(v) ADR programme is not feasible in case of extreme powers imbalance between the parties,
(vi) ADR settlements do not have any educational punitive/deterrent effect on the public at large.
(vii) Multi party cases cannot be dealt appropriately by means of ADR system
(viii) ADR likely to undermine judicial reforms.

FEW STEPS TO REDUCE LITIGATION

 Situational- distinctive different issues of law and fact- judicial remedies – proper
inference – interpretation of law.
 It is important to recognize and get to know the correct method
 It is also important to recognize and give proper weight to the context in which a dispute
resolution process is taking place.

Types of Disputes and its solution

Dispute resolution is, quite simply, the process of resolving a dispute between parties. Dispute
resolution is also often referred to as “conflict resolution.” There are a number of processes that
can be used to resolve conflicts, claims, and disputes.

Alternative dispute resolution, or ADR, refers to ways of addressing and settling disputes outside
of court and its traditional, adversarial atmosphere. These processes can be used to solve any
type of dispute, including but not limited to:

 Family Law Disputes: This includes child custody, divorce proceedings, and child
support order modifications;
 Neighbor Disputes: This includes frequent noise ordinance violations and issues with
Homeowners’ Associations;
 Workplace Disputes: Some examples of workplace or employment disputes include
wage and hour disputes, and workplace harassment;
 Business Disputes: Examples include contract disputes and business debt;
 Housing Disputes: Examples include a landlord failing to maintain a habitable residence
and housing discrimination;
 Personal Injury Disputes: Examples include medical malpractice cases and motor
vehicle collision cases;
 Consumer Contract Disputes: This can include product liability and warranty claims; or
 Environmental Disputes: Examples include toxic waste dumping and air pollution.

What are the different types of ADR which is available????