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What Is (ADR) Alternative Dispute Resolution ?: Litigation in Court

Alternative dispute resolution (ADR) refers to resolving disputes through mediation or arbitration instead of litigation. It aims to reduce court caseloads and costs while allowing parties more flexibility and preserving relationships. Common ADR methods include mediation, where a neutral third party helps facilitate an agreement, and arbitration, where a neutral arbitrator makes a binding decision. While ADR has a long history in Nepal and is legally recognized, its implementation has been weak with low success rates. Reasons for this include a lack of competent human resources and proper knowledge of relevant laws.

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52 views

What Is (ADR) Alternative Dispute Resolution ?: Litigation in Court

Alternative dispute resolution (ADR) refers to resolving disputes through mediation or arbitration instead of litigation. It aims to reduce court caseloads and costs while allowing parties more flexibility and preserving relationships. Common ADR methods include mediation, where a neutral third party helps facilitate an agreement, and arbitration, where a neutral arbitrator makes a binding decision. While ADR has a long history in Nepal and is legally recognized, its implementation has been weak with low success rates. Reasons for this include a lack of competent human resources and proper knowledge of relevant laws.

Uploaded by

Tilak Rawat
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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Download as DOCX, PDF, TXT or read online on Scribd
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What is (ADR) Alternative Dispute Resolution ?

Alternative dispute resolution refers to any methods used to resolve a dispute


between parties without resorting to litigation in court . Alternative dispute
resolution (“ADR”) may make use of a third party, such as a mediator, but it is not
required. One of the benefits of alternative dispute resolution is that it reduces the
load on an overburdened court system. In addition, it is often a less expensive
solution for all parties, it has gained broad acceptance in the business and legal
community. ADR is a means of resolving disputes without resorting to court
action. It is available in regard to civil, but not in criminal cases.

Alternative dispute resolution, or ADR, is a process in which a neutral third party


—a mediator or arbitrator—helps parties who are embroiled in a dispute come to
an agreement.

What is ADR history ?

Alternative Dispute Resolution, as it is known now, originated in England as early


as 1066.

Merits of ADR
 Flexibility in scheduling, and suitability for disputes with multiple parties
 Less complex and less formal
 Parties ability to choose a neutral third party with expertise in the area of the
dispute to mediate the dispute
 Ability to obtain a practical solution tailored to the needs of all parties
 Likelihood of a speedy settlement
 Confidentiality ensures the preservation of the parties’ reputations and
relationships
 It creates the win-win situation among the disputants parties.
 Less expensive
 Confidentiality and preservation of relationships and reputation of the disputes
parties.
Demerits of ADR

 Disputants may possess unequal bargaining power in such situation one party of
the disputes may dominate another party.
 In a complex legal dispute a mediator or arbitrator may not have the same legal
expertise and knowledge as judges have.
 The outcomes of ADR are unpredictable and differ in every case since it lacks the
acceptance of precedent as a reference.
 the awards of ADR are not legally binding so enforceability of award is
challenging.
 Possibility of biasness
 Discovery limits
 ADR lacks its own independent appeal mechanisms as courts have. If ADR fails to
resolve the dispute, the disputes again need to knock the door of court to resolve
the disputes.

Types of ADR

1. Mediation:

The term mediate is derived from the Latin word‘mediare’ which means to be in
the middle. The mediation process consists of the neutral an independent third
party meeting with the parties who have the necessary authority to settle the
disputes.
Mediation involves the use of a neutral third party, the “mediator,” who acts as a
go-between while the parties go back and forth with their demands. The parties
meet in a neutral location, often separate conference rooms at the office of a
professional mediator, or some other location. Initially, the parties meet in one
room to make brief presentations to the mediator, then the mediator goes back and
forth between the parties’ rooms, sharing information and relaying offers and
responses.

Mediators can help disputants break an impasse in the following ways


1. Finding additional information that parties were unwilling to share with each
other;
2. Overcoming parties’ resistance to communicating and reaching an agreement by
presenting offers to both sides;
3. Contributing impartial, specialized expertise; and
4. Brainstorming options to find a resolution that satisfies both parties.

2. Arbitration:
In arbitration, the other primary form of alternative dispute resolution, a neutral
third party serves as a judge who is responsible for resolving the dispute. The
arbitrator listens as each side argues its case and presents relevant evidence, then
renders a binding decision.
Disputants can negotiate virtually any aspect of the arbitration guidelines,
including whether lawyers will be present and which standards of evidence to use.
Arbitrators hand down decisions that are usually confidential, that is binding, and
that cannot be appealed. Arbitration tends to be more expensive than mediation but
less expensive than litigation

3. Negotiation
Negotiation is the process of bargaining between two or more conflicting interests.
In negotiation, the concerned parties meet to resolve a dispute or the facilitator
may work for one side, training the term or individual in negotiation skills,
preparing them for a particular Negotiation and coaching them during the actual
negotiation process.

4. Conciliation
conciliation is a confidential, voluntary and private dispute resolution process in
which a neutral person helps the parties to reach a negotiated settlement. In
conciliation, the parties choose an independent third party who hears both sides
Privately and then prepares a compromise which the conciliator believes is a fear
disposition of the matter. The party normally do not meet face to face in this
method. It not binding nor is it enforceable unless the party adopt it.

Why ADR is needed ?


 Easy and speedy justice for citizens
 Less expensive
 Preserves relationship
 Save the money and time
 To reduced the caseload in the courts
 To create win-win situation
 To solve the case with expertise
Alternative Dispute Resolution (ADR) in Nepal

ADR is not a new phenomenon in Nepal. Panchayat, Panchal, Mukhiya, Jimwal


etc. were some of the methods for settlement of dispute in traditional period.
Nepal has a long history of settling disputes out of court. Community leaders and
village elders have settled disputes in Nepal since time immemorial.

At present,Through the introduction of laws governing local bodies, elected leaders


were authorized to settle disputes at the local level under municipalities laws. As
part of the decentralization of judicial powers, local bodies were also authorized to
settle certain kinds of disputes through mediation and arbitration.
It was given legal recognition for the first time through Development Committee
Act in 2013. Arbitration Act enacted in 2038 was later replaced by Arbitration
Act 2055 and Mediation Act 2068, Mediation rules 2070. The Constitution of
Nepal has also provisioned to pursue alternative means such as arbitration and
mediation for the settlement of disputes of general nature under the policies
relating to justice and penal system.

However, ADR techniques in Nepal have not been efficacious enough causing the
cases to revert back to the court. In average, the success rate of mediation in Nepal
amounts to only 22-23% as pointed out by annual reports while the success rate in
countries like Sri Lanka and Maldives amounts to 70-80%. In the year 2076/77, of
the 267 cases sent for mediation by the Supreme Court, only 8.99% were
successful. Likewise, the success rate of cases sent for mediation by the High
Court and District Court was 15.14% (of 3456 cases) and 19.06% ( of 14085
cases) respectively.

Why The implementation of ADR is very weak in Nepal ?

 low success rate of mediation,


 lack of proper execution of decisions,
 breach of the principle that arbitrary awards cannot be appealed,
 interference by the Supreme Court and so on.
 lack of competent human resources
 lack of proper knowledge of law (hardly 2% of committee members have
legal background while majority members being political representatives)
 difficulty in execution of decision and so on.

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