Flipping a coin, stone or a similar token has been a vital means of solving conflicts in the history of mankind. And it has also been the gradual process leading to the birth of Alternative Dispute Resolution (ADR). ADR essentially refers to any means of settling disputes outside a courtroom or without litigation. It has two broad types: Arbitration and Mediation, with more variants included in this umbrella. ADR saw a rise post World War II when the burgeoning courtroom queues and the rising cost of legal help became too much to bear.
When did ADR come into existence?
While the Mari Kingdom in the 1800 BC used Arbitration and Litigation to solve issues with other kingdoms, it wasn’t until 1958 when the New York Convention called the ‘Convention on the Recognition and Enforcement of Foreign Arbitral Awards’ was drafted that ADR became a legally recognized way of solving disputes. The New York convention set ADR in stone and directed formal laws around it. The United States in 1970 joined the same as a member, and as on date, the convention has 157 countries as its signatory members.
ADR is fast, cheap and personal
A faster and cheaper method of solving disputes would definitely be reason enough for parties to opt for ADR over litigation. Attorney fee, court costs, experts’ fees, discovery and other such litigation expenses can be avoided in this alternative method of addressing disputes, which lends it an edge over traditional courtroom methods. In fact, a study by the World Bank suggests that ADR can save more than $500 per party.
A great example would be the 1922 NCR (now known as AT&T Global Information Solutions) case. NCR had a clause in each of its commercial contracts to prefer ADR as the first method of settlement. In 1922, when a company sent NCR substandard computer boards, NCR demanded a partial refund. The company not only denied a refund, but it also threatened to initiate a legal battle. However, owing to the aforementioned clause, the case was taken to the American Arbitration Association where the outcome was decided in NCR’s favour.
In addition to resolving disputes in a faster, more economical way, an Alternative Dispute Resolution presents both the parties with a chance to tell their own stories. Be it trade, matrimony disputes, disputes between neighbours, tortious liability or consumer disputes, an ADR takes into consideration local conditions and factors that a centralized court is conditioned to ignore. The M/S. Afcons Infra. Ltd. & Anr vs M/S Cherian Varkey case, India, wherein Cherian Varkey accused Afcons Infra of not completing their tendered job and absconding with over Rs. 2,10,00,000, shows how creative ADR can be.
ADR is accessible to all
Switchmen’s Union of North America (1943) is a famous case where two labour unions fought amongst themselves, seeking the help of the National Mediation Board. Groups such as these, and sometimes smaller, often find litigations beyond their reach, especially if they seek a legal battle under a criminal scenario. Arbitration and mediation are ADR methods made for such cases – they are similar to litigation but much simpler and cheaper. The element of simplicity and accessibility results in a lot of cases being solved by ADR helping courts a great deal.
ADR in criminal law
When we talk about a criminal trial, ADR includes things that are not a part of the traditional justice system. Victim/ offender mediation, school programs, plea bargaining, ex-offender assistance are just a few to name. Together, they come under the umbrella of ‘restorative justice’ where the victim and the offender are encouraged to interact. The initial trials of the system began in Ontario, Canada in 1970s and are now being adopted all over the world.
A case worth looking into would be the Indian case of Smti Prerna Vivek Narwani v. Shri Vivek Raj NARWANI revolving around a matrimony dispute where the husband was pressed with criminal charges. However, the case was solved through arbitration eventually.
In addition to all the factors mentioned earlier, ADR is often a confidential affair, helping people keep the case under the covers and avoid defamation. Sexual assault victims and businesses planning on not losing clients see this as an attractive method of solving disputes. This is a major reason why it is hard to find much information about actual criminal cases solved by ADR online.
The role of ADR has been crucial in unburdening the courts of cases that can be solved in a more informal fashion. This clears up the pending queue of suits lined up, helping justice to be served in a timely manner. In fact, plea bargaining – a method under ADR in criminal law – helps clear up the court congestion.
To end with, as Herbert Read says, “At all events, arbitration is more rational, just and humane than the resort to the sword”.