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.
Alternative Dispute Resolution is an effective to settle commercial disputes.
"Justice delayed is justice denied." This is a very well known maxim. When justice is sought, the courts are duty bound to dispense it as early as possible. Justice should be speedy because if justice is not delivered in time, it is as good as getting no justice at all.
Globally, the state and federal courts are suffering from increasing caseloads. There are numerous reasons for delays in justice, such as frequent adjournments and judicial vacancies. Though there are procedures to be observed, unfortunately, there is no adherence to the same. Secondly, court procedures are extremely time-consuming. Adjournments are the order of the day; with the result that by the time a decision is reached, very often either the urgency has gone or the parties are no more. Delay also results in a backlog of pending cases.
Possible solutions to remedy this malady are:
Overhaul the existing judicial system, or
Adopt Alternative Dispute Resolution (ADR)
To effect a thorough change in the justice-delivery system, the following should be done:
Laws should be made so simple that a layman can understand them.
Technicalities and elaborate provisions for appeal should be done away with.
The right to appeal should be given in only selective and limited cases.
Long arguments should not be permitted.
Only in exceptional cases should adjournments be granted.
Pre-litigation conciliation should be permitted.
All vacant positions in the judiciary should be filled as early as possible.
Retired judges should be called in to provide service as a special bench or as advisors.
A more effective option, however, is Alternative Dispute Resolution.
ADR has emerged as a very useful mechanism for the settlement of commercial disputes in recent times. Delay shakes public confidence in the administration of law and justice. Present-day litigation is very expensive. The plaintiff has to pay exorbitant court fees as well as lawyer's fees. Alternative Dispute Resolution seems to be the best option.
Different forms of Alternative Dispute Resolution
There are generally four methods of ADR: negotiation, mediation, conciliation, and arbitration. Among them, arbitration and mediation are familiar and widely preferred. They are both known alternatives to litigation.
Arbitration means the process of resolving a dispute by appointing an arbitrator who hears the facts and gives his decision, which may or may not be binding. The arbitrator can also be called a private judge. The object of arbitration is the settlement of a dispute in an expeditious, convenient, inexpensive, and private manner so that it does not become the subject of future litigation between the parties.
Mediation means hiring a neutral third party, the mediator, who assists two or more parties in order to help them arrive at a decision in the common interest of the parties. Both are termed out-of-court settlements.
The purpose of arbitration and mediation is to provide quick redress to commercial disputes. We all know that judges act within the confines of laws that guide them; but, at the same time, they do not act with the promptness they should ordinarily exercise. For some reason, they continue the trial for days and sometimes do not pronounce the judgment even at the end of the trial. No matter what the reason, judges should not be instrumental in prolonging a trial. So it's necessary that they be prompt and active in giving justice. Judgments should be pronounced, after the trial is completed, as early as possible.
The second thing that concerns the Bench is that every judgment should be a reasoned judgment because if there is a lack in the quality of justice, appeals are preferred, and it again increases the workload of the judiciary. Every judgment should be sound in law, so that there remains no loophole or reason for appeal. Judges and the attorneys are both officers to the court and should search for truth and help in the administration of justice. Both bench and bar are important factors for the plaintiff and the defendant and a settlement depends on both of them.
In the end, due to public pressure over the backlog in the courts, alternative ways of resolving issues are gaining popularity. They consume less time and are far cheaper than the expensive litigations. Even if a settlement is not reached during arbitration or mediation, both these processes often help 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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