Introduction:

Unlike social change, change in legal discipline is resisted throughout the history and this is the reason that legal jurisprudence and procedures remained similar over centuries.[1] This resistance to change is often criticised by the thinkers and philosophers both from legal discipline as well as social and scientific arenas. The abidance of strict legal tenants in adversarial legal system and the emphasis on formalities, procedures and process than the need of justice has hinders the pace, required for present day justice, which is defeating justice in itself. In the present age, this rigid legal parlance has been severely criticised and alternate recourse to adversarial litigation system in form of alternate dispute resolution (ADR) systems have emerged with focus on timely disposal, transformative justice, reconciliation and mediation than legal battles, avoiding the formal legal system across the world. It is often termed as welcome development.[2] In this essay, this shift has been discussed with perspective of defects in adversarial litigation system leading to new litigation modes, affectivity of ADR and challenges ahead in adoption of ADR as true alternate to adversarial litigation system prevailing in the world.

Need for ADR: Problems with Adversarial / Formal Justice System:

Formal justice system prevailing in most parts of the world including the UK is considered heavy and time consuming. It is based on codified procedures and only those follow or able to follow these procedures are admitted to justice system.[3] It may however, be seen that these strict procedures are causing undue delays especially in those areas where time is crucial e.g. in family matters and industrial disputes.[4] It is costly in terms of money and is unable to provide swift justice, hence denies justice. Over formalisation and importance of technicalities over the substance of matter has also been described as a reason to search for an alternate to adversarial civil litigation process. [5]

Alternate Dispute Resolution (ADR) Movement:

Throughout the history, there were calls to find alternates to formal legal system and many solutions as formal and informal resolutions were put forward. ADR, however, is the most recognised effort as the result of which there is a shift from formal litigation to out of court and informal resolution of the disputes at the convenience of the parties. Though, a major credit goes to the players outside the court system, but it may be acknowledged that to an extent, courts have also promoted ADR as alternate method of adjudication by acknowledging and giving support to the decisions made therein. ADR movement was stsrted in the 20^th century in USA and Canada at a time when there were calls for civil liberties and political uprising against civil discriminations.[6] The situation was worsen when there were civil suits against exploitation, discrimination and absence of fundamental rights beyond the capacity of formal litigation system and the courts deliberately encouraged out of court settlements that became a norm in US legal parlance by the end of century.[7] Continental Europe and the UK had soon followed the path and an alternate to formal legal system was found in form of ADR. And welcomed [8]

What is ADR?

Generally speaking, ADR is a dispute resolution method or process without involving the court of law of competent jurisdiction or following any formal legal procedure and decision making in such a process is rather based on resolution, evaluation, facilitation or mediation etc. as agreed upon by the parties.[9] In present day ADRs, most known are arbitrations common in industrial disputes, mediation and reconciliation in family matters and other general civil matters, however, the choice is of the parties under litigation.[10] In connection with ADR, it is however; wrong to consider that there is no set of principles to govern these proceedings or ADR work in void. It has following principles to follow:

• An ADR process provides an opportunity for consensual justice to the parties and is voluntary and cannot be imposed against the will of any party.
• Decision of ADR process is always agreed upon by all the parties and cannot be unilaterally imposed. An aggrieved party in ADR may reject the decision and recourse to court of law, instead, if there is no voluntary waiver to this right.[11]  Resolutions under arbitration law may be challenged as these are often governed by the arbitration law of the land and provides an opportunity to the approach court of law as appellate forum[12].
• Arbitrators, mediators or facilitators in ADR must be neutral. They may or may not be expert at law, but must have competency to understand the nature of dispute, hence expert on the issue. If the impartiality is questioned, no ADR can be done.[13]
• Processes are informal without fear of recording and used against the party, hence ensure confidentiality is secured. No disclosures are allowed.[14]
• Scope of ADR is defined in prior to ensure quick and effective justice.[15]

Advantages and Disadvantages of ADR:

It has been seen that for last four decades, ADR has gained a lot of popularity and its scope is still widening. This has helped the formal system too by sharing of its load. But, ADR as an alternate to adversarial litigation system has its own advantages and disadvantages. Advantages of ADR are as under:

• First of all, it is cost effective. As against the adversarial legal system where often cost of justice exceeds the cost of matter involved, ADR offers much cheaper course to justice as it avoids, litigation costs, counsel fees, opportunity cost and others. ADR often avoids multilayer appellate system and therefore avoids this cost too.  Only a small percentage of ADR cases are seen as reverted back to formal litigation forums.[16]
• Formal litigation system does not offer any safeguard to the interests of parties but the supremacy of law. Instead in ADR parties are free to safeguard their interests where parties assets their point of views without legal complications and formalities.[17]
• It is a quick way to get justice as against litigation in court of law. There are no formal procedures but those are agreed upon by the parties, hence can avoid any or all formalities in order to reach quick disposal of the matter. This flexibility and speed has truly made this alternate dispute resolution mechanism popular in the present era[18].
• Confidentiality of record and proceeding is ensured in ADR as nothing can be presented in the court of law as evidence against any party except public proceedings made during the course.[19] This confidentiality is mutual and agreed.
• ADR covers all matters those can be referred to a formal judicial system including technical matters, as it provides for the leave to appoint expert to help adjudicators to reach a decisions. This option is prevalent in industrial arbitration and mediation[20].
• No decision or award in ADR form part of body of law or precedents and cannot be form the basis of future decisions, hence saves formal legal system from personalised decisions made in the course of ADR.[21]

Disadvantages of ADR are as listed below:

• Unlike formal judicial systems, ADR are facilitation methods and does not ensure a decision at the end. ADR may or may not be completed. Decisions may be reached on the basis of mutual agreement instead of proceedings at the end or no decision may be preferred by the parties to move to litigation.
• However, once decision is made it is final except in arbitration where an award may be challenged.[22]
• Decisions may be influenced by resourceful party and equitable decision may not be reached[23].
• Parties adopt this course to avoid legal system too so that truth of the case may remain hidden while a dispute is resolved too. This saves their reputation but lose chance to ensure public interest by government and legal bodies.[24]

Will ADR replace Adversarial Litigation System?

This essay has covered ADR as system and is allied benefits with positive note. But the question as ADR is able to replace adversarial adjudication is yet premature. ADR are provided sufficient space for quick redressal but civil litigation system serves some basic purposes like ensuring economic and social good at large. It has passed through centuries successfully and ensured uniformity in purpose and predictability in judgments. The rule of precedents serves social order that is missing in ADR that serves the purpose of parties.[25] ADR is not based on the concept of justice but settlement.[26] Multilayer system of appeals ensures chances of just decision at the end and hence justice is seen as done here. In most of family and industrial disputes where ADR is prevalent, the purpose of litigation is to restore financial or social position whereas all litigation does not revolve around the idea of compensation. [27]

Conclusion:

At the end of this discussion, it may be summarised that ADR is a welcome change in the litigation arena and can be seen improving with every passing days. It is serving a good purpose in those civil disputes where parties are interested in time saving and quick disposal and wants to keep their interest high but it is yet unable to ensure the end of justice that is the crux of formal litigation.

Bibliography:

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• Robert M. Groves and Daniel L. Cork,  Ensuring the Quality, Credibility, and Relevance of U.S. Justice Statistics, Panel to Review the Programs of the Bureau of Justice Statistics, (2009) National Research Council
• Sarah Rudolph Cole,  Incentives And Arbitration: The Case Against Enforcement Of  Arbitration Agreements Between Employees And Employers, 64 UMKC L. Rev. 449
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