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How ADR can help with Justice [by Payal Popat]
Payal Popat is an attorney in India with a keen insight into international law. This week, she offers a column detailing her thoughts on ways for parties to mend their differences in a timely manner.
“Justice delayed is justice denied.” This is
be filled as early as possible.
in the common interest of the parties. Both
a very well known maxim. When justice is
• Retired judges should be called in to
are termed out-of-court settlements.
sought, the courts are duty bound to dis-
provide service as a special bench or as
pense it as early as possible. Justice should
advisors.
be speedy because if justice is not delivered
The purpose of arbitration and mediation is to provide quick redress to commercial
in time, it is as good as getting no justice at
A more effective option, however, is Alterna-
disputes. We all know that judges act within
all.
tive Dispute Resolution.
the confines of laws that guide them; but,
Globally, the state and federal courts are
ADR has emerged as a very useful mecha-
promptness they should ordinarily exercise.
suffering from increasing caseloads. There
nism for the settlement of commercial
For some reason, they continue the trial for
are numerous reasons for delays in justice,
disputes in recent times. Delay shakes
days and sometimes do not pronounce the
such as frequent adjournments and judicial
public confidence in the administration of
judgment even at the end of the trial. No
vacancies. Though there are procedures
law and justice. Present-day litigation is very
matter what the reason, judges should not
to be observed, unfortunately, there is no
expensive. The plaintiff has to pay exorbitant
be instrumental in prolonging a trial. So it’s
adherence to the same. Secondly, court
court fees as well as lawyer’s fees. Alterna-
necessary that they be prompt and active
procedures are extremely time-consum-
tive Dispute Resolution seems to be the best
in giving justice. Judgments should be pro-
ing. Adjournments are the order of the day;
option.
nounced, after the trial is completed, as early
at the same time, they do not act with the
with the result that by the time a decision is
as possible.
reached, very often either the urgency has
Different forms of Alternative Dispute
gone or the parties are no more. Delay also
Resolution
results in a backlog of pending cases.
The second thing that concerns the Bench is that every judgment should be a reasoned
There are generally four methods of ADR:
judgment because if there is a lack in the
Possible solutions to remedy this malady
negotiation, mediation, conciliation, and arbi-
quality of justice, appeals are preferred,
are:
tration. Among them, arbitration and media-
and it again increases the workload of the
• Overhaul the existing judicial system, or
tion are familiar and widely preferred. They
judiciary. Every judgment should be sound
• Adopt Alternative Dispute Resolution (ADR)
are both known alternatives to litigation.
in law, so that there remains no loophole or
To effect a thorough change in the justice-
reason for appeal. Judges and the attorneys
delivery system, the following should be
Arbitration means the process of resolving
are both officers to the court and should
done:
a dispute by appointing an arbitrator who
search for truth and help in the adminis-
• Laws should be made so simple that a lay-
hears the facts and gives his decision, which
tration of justice. Both bench and bar are
man can understand them.
may or may not be binding. The arbitrator
important factors for the plaintiff and the
• Technicalities and elaborate provisions for
can also be called a private judge. The object
defendant and a settlement depends on both
appeal should be done away with.
of arbitration is the settlement of a dispute in
of them.
• The right to appeal should be given in only
an expeditious, convenient, inexpensive, and
selective and limited cases.
private manner so that it does not become
In the end, due to public pressure over the
• Long arguments should not be permitted.
the subject of future litigation between the
backlog in the courts, alternative ways of
• Only in exceptional cases should adjourn-
parties.
resolving issues are gaining popularity. They
ments be granted.
consume less time and are far cheaper than
• Pre-litigation conciliation should be per-
Mediation means hiring a neutral third party,
the expensive litigations. Even if a settle-
mitted.
the mediator, who assists two or more par-
ment is not reached during arbitration or
• All vacant positions in the judiciary should
ties in order to help them arrive at a decision
mediation, both these processes often help
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to shorten the litigation time. From a judge’s perspective, they are the best persons to decide from a legal viewpoint, as they are experts and equipped with knowledge of law. The United States, as well as many other countries, has made it a rule that all lawsuits have to avail themselves to some form of Alternative Dispute Resolution. In fact, some courts in the U.S. have made mediation mandatory in practice. There are pros and cons to every issue. The mandatory aspect has raised many issues in the U.S. But looking to the positive side, by opting for an alternative way of justice, the percentage of cases settled daily would increase, and judges can devote more time to their ongoing cases. Justice would then be speedy. To conclude, Alternative Dispute Resolution is a much easier and faster way of securing justice compared to expensive litigation. Considering the fact that delay in justice is tantamount to justice denied, we should opt for this means.
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