Alternative Dispute Resolution
Unburdening The Court

By Mukti Rijal

ALTERNATIVE dispute resolution mechanisms have started to receive attention in our context. Though the arbitration law is ineffective for quite some years, it is being resorted to resolution of commercial and business related disputes. There are some critical advantages of arbitration over court based litigation. The first merit of arbitration is that it allows the parties to keep private the details of the dispute whereas adjudication is generally a public proceeding.

Scope

In arbitration there is greater scope for minimising acrimony. The costs can be kept low. The time and place of the hearing can be chosen according to convenience. In arbitration there will be saving of time. The parties are entitled to chose their own judge and choice of expert who is more able to view the dispute in its commercial setting.

Court litigation inspite of the best efforts of those involved in the justice delivery system, is bursting in its seams. The delays are endemic and taking into account the appeal procedures, it is difficult to expect final resolution of dispute within a reasonable time. Court based litigations are very expensive However, arbitration, in this part of the world especially, in India and Nepal, is also criticised for being costlier and time consuming. Most of the arbitral proceedings for the disputes involving substantial sums of money are conducted before trained lawyers including retired judges, by trained lawyers. The procedures and formalities are as rigid as those before courts of law. Moreover, arbitration is adjudicatory and results in a binding decision. There has been a trend especially in the developed world to resort to other mechanism of alternative dispute resolution that are consensual and non- binding. Mediation and conciliation are widely accepted and brought to use for the amicable settlement of the disputes. Mediation and conciliation are interchangeable expressions. In both the procedures, disputes are successfully resolved as mutually agreed settlement. However, there is a minor difference between mediation and conciliation. In mediation the emphasis is on more positive role of neutral third party than in conciliation. There exists another device of alternative dispute resolution that is frequently resorted to as a non-binding procedure. It is a mini-trial in which the disputing parties present their respective cases before their senior executives who are competent to take decisions. They are also assisted by a neutral third party. The executives have an objective assessment of the disputes and if, possible, they can mutually arrive at an amicable settlement. New techniques of the alternative dispute resolution are being evolved to suit the nature of the dispute or convenience of the parties. Neutral listener agreement is one of the mechanisms that is applied in developed societies. The parties to the dispute discuss their respective best settlement offer in confidence with the neutral third party who after his own valuation suggests settlements to assist the parties to attempt to a negotiated settlement. Hiring a judge is another procedure where the disputing parties mutually approach the court to appoint a referee, usually a retired judge, before whom they present their case in an informal proceeding. The referee-judge gives his decision which is enforceable by the court.

In India Lok Adalats are becoming very popular. Lok Adalats in india are manned by experienced and talented persons who are ordinarily drawn from retired judges, public spirited lawyers and persons, law teachers selected on the basis of their reputation in the community, professional integrity and aptitude for social work. The Legal aid boards in India draw up panels for each district in consultation with each state high court and district court judges as well as bar associations. The required number of judges for the Lok Adalats organized in the district may be invited from amongst those included in the panel. Apart from judges, the key personnel for the Lok Adalats also include para legals, social activists, the local administration officials and memebrs of bar and bench. Lok Adalat panels are rendering social service without remuneration. According to a judge of the supreme court of India ‘ the spirit of Lok Adalat is live and let live; give and take. There is neither a victor nor a vanquish in the cases settled through Lok Adalats.’

In Nepal, we have a very rich tradition of settlement of disputes through amicable and non- adversarial means. The indigenous culture and traditions rely on traditional mechanism to resolve disputes and rarely do they take their disputes to the court of law. For example in the district courts of Nepal like Mustang and Manang there are a very few cases and lawsuits lodged for settlement. The local self governance act, 1999 builds on the existing traditions in the society and provides for settlement of the dispute through recourse to mediation and conciliation. The provision has not come into effect as the government seems reluctant to lift embargo on the implementation of the same. It is time the embargo was lifted so that local bodies are formally empowered to resolve disputes. Moreover, it is also high time other mechanism and procedure for dispute resolution are adopted and promoted for resolution of disputes in Nepal.

Fair

The alternative dispute mechanism not only alleviates burden of the court but makes justice dispensing more fair to create a win-win situation for the parties to the disputes.