Comparative Analysis of Contemporary and Conventional Method of Access to Justice
Alternative Dispute Resolution (ADR) v. Litigation
BY: ADITI LAKHANAPAL
Conflict is an element of life. It is neither good nor bad. Nevertheless, what is imperative is exactly how we bring about or handle it. Negotiation modus operandi is often vital in solving the conflict. Alternative Dispute Resolution (ADR) denotes to a diversity of streamlined resolution mechanisms intended to resolve matters in debate more proficiently and resourcefully when the ordinary negotiation process fails. Alternative Dispute Resolution (ADR) is unconventional to the Formal Legal System. It is an alternative to litigation. It was being thought of in view of the fact that the Benches are overstrained with cases. The said system originates from the disappointment of many people with the way in which disputes are traditionally resolved resulting in condemnation of the Courts, the legal profession and sometimes lead to a sense of separation from the whole legal system- as a result, the requisite for Alternative Dispute Resolution.
The Litigation or conventional technique of access to justice is the remedy to formal adjudication mechanisms as provided by the State, i.e. approaching the courts. The litigation process is not a speedy way to resolve the disputes since it has the potential to drag on for weeks, months, or even years. The parties to any court case can surely come to a settlement, or settle the matter at any time in the course of the litigation process.
Arbitration vs. Litigation
Which mechanism should be adopted to resolve the matter is based on the various factors which are discussed in brief below:-
- Cost Factor:-
- In most cases, the costs and expenses of arbitration are not as much of as litigation. The costs for the arbitration process are restricted to the fee of the arbitrator based on the quantum of the claim, expertise of the arbitrator, and expenses), and lawyer fees. The lack of pre-hearing motions and multiple testimonies, as well as the conclusiveness of the decision, results in reducing attorneys’ fees and costs.
- Costs for litigation take account of lawyer fees and court costs, which can be very high for the reason that litigation is most of the condemned for the time and expense of pre-trial detection. The cost of prolonged trails in the courtroom increases the cost of litigation
- Time Factor:-
- The arbitration process is fairly speedy. Once an arbitrator is appointed, the case can be heard straight away. An arbitration hearing can often be observed in a matter of months and not years.
- In courtroom litigation, one has to hold on till the court has time to observer it; this can take many months, even years, before the case is heard.
- Opportunity of presenting Evidences:-
- The arbitration process has an inadequate evidence procedure, and the arbitrator controls what evidence is presented. This is one of the loopholes of the arbitration process whereby parties don’t get opportunity to present full disclosure of evidences and testimonies which consequently affects the judgment.
- Litigation necessitates full disclosure of evidence to both parties subsequently there are subpoenas, interrogatories, and discovery process for executing effective judgment.
- Arbitration is private and confidential. The proceedings are not subject to public records. Arbitrators preserve the confidentiality of the hearings except some law necessitates to the contrary.
- Litigation is a formal process conducted in a public courtroom. Lawsuits can damage reputations since Court filings and trial testimonies are subject to public records.
- Appointment of Arbitrator/Judge:-
- The parties in the arbitration process can decide jointly on the arbitrator;
- In litigation, the judge is appointed and the parties have little or no say in the appointment. The parties may have some say in whether a case is heard by a judge or a jury considering the principles of natural justice.
- Ease of use of Appeal:-
- Arbitration process is binding upon the parties. The parties commonly have no appeal option, unless an appeal has been incorporated in an arbitration clause. However some arbitration judgments may be revised by a judge and may be removed if it is prove that the arbitrator was biased and subjective.
- Litigation allows multiple pleas at various stages starting from the District Court to the Apex Court. Courtroom is far more satisfactory way of resolving disputes.
- On-going Relationship:-
- Arbitration preserves ongoing business or personal relationship by resolving disputes amicably thereby allowing flexibility, control and participation of the disputing parties.
- Courtroom litigation, which inclines to be more antagonistic in nature. This may do not take into account whether litigants have continuing relationship or not.
Constitution has envisioned a far superior role for the State in the Indian Society than what it is being played by it currently. We do not need an alternative method of access to justice, what we need is that the Constitution be enforced in its true spirit. For this, an interrogative method of access to justice has to be trailed.
Aditi Lakhanapal is a law student pursuing B.Com LL.B (Hons.) at Rayat Bahra University. She is an avid learner & researcher and is keen towards contributing to the society through her legal profession in making.