Man since its inception has been living in small or big social groups which it forms based on the mutual understanding between several other beings, the social circle in which a man lives is of umpteenth importance for his survival, new relations between different beings are built and ultimately these relations become an indispensable feature for their survival.
Yet many times certain conflicts and disagreements begin to develop in such relations based on differences of opinions and different interests, these conflicts occur between different individuals or groups for want of getting their opinions labeled as better than the other.On a broader spectrum these disputes might lead to violence or war .
Disagreements resulting in full-blown disputes might take place between the certain individuals for example between a shopkeeper and a consumer regarding the price and quality of some commodity, or between certain companies
or between different countries too, and hence the need for dispute resolution also arises
Lawsuits against parties for want of neutralizing the disagreements is one such way for the dispute resolution through legal means, on consensual terms there can be mediation, arbitration and conciliation and Lok adalats for fast conclusion of the disputes.
The resolution of the disputes is a very important subject which has become a whole different subject of study in modern times and the fundamentals for such resolution of various types and degrees of disputes are being taught in various educational institutions all around the world.
The Hindu religion discusses a holistic view of life and the development of cordial human relationships. The Hindu way talks about creating such an environment that would prevent the creation of conflicts in the first phase, yet many such methods and preachings about conflict resolution have been enunciated in the Hindu Dharma Shastras,the Hindu or the Indian philosophy consists of six systems( Saddarsana) namely
Sankhya, Yoga, Nyaya, Vaisheshika, Mimansa, Vedanta, these talk about how one should try gaining knowledge and reason out in various situations based on evidence and
how there should be no hatred between men for each other, the Vedic outlook about life talks about the removal of hate and this forms the basis of conflict resolution in the age-old Hindu religion.
The Quran similarly in various verses talks about the need for conflict resolution between individuals and groups by getting involved in good deeds which would prevent any sort of conflicts and to strive towards justice in everyday lives, the verses and the hadiths have massively talked about the manners of resolving disputes.“ two parties among the believers fall into a quarrel, make you peace between them […] with justice and be fair. For God loves those who are fair. The believers are but a single brotherhood; so make peace between your brothers….” (Qur’an 49:9-10, cited in Abu-Nimer, 2010, p. 83) Similarly Jalaluddin Rumi the notable Sufi Islamic poet talks about the innate feelings of love and compassion that should be used as a catalyst in improving one’s ability to lead exemplary lives which would ultimately lead to such conditions that would prevent and sort out conflicts among men.
The pillars of a civilized society are very much strengthened by a strong judicial system…the upliftment of individuals, groups and society altogether has to have a just and impartial system of getting justice administered.Indian Judiciary’s major function is the way of resolving disputes…judiciary among other organs of the government of India is at the topmost of administration of justice
It involves court proceedings and is also known as JDR (Judicial Disputes Resolution) that is through the court process,it is the traditional and universally accepted dispute resolution mechanism all over the world. The Supreme Court is the apex court of India followed by High courts for each state District courts for each district Magistrates of first-class and second class and junior civil judges at the bottom followed by tribunals. The Code of civil procedure 1908, The code of criminal procedure 1973 and the Indian evidence act 1872 play an important role in the administration of justice and these legislations are the pillars of judicial dispute resolution. Under the JDR any one party out of the two
approaches the court and files his /her petition claiming their legal rights ..and the other party files a statement of reply denying the statement of claims. Both parties contest their cases through advocates being presided by an impartial neutral judge, charges or issues in the case are then framed by the judge. Both parties are examined based on evidence, and statutes applying specific civil or criminal procedures. The role of the judge is limited to that particular case.
Judicial dispute resolution enables faith in the judiciary, presents a well-defined procedure and the binding nature of the judgement prevents complexity and has wide jurisdiction
There are 2 stages
In the pre-litigation stage, sending the notice is the first step and the other party has to give a reply to that legal notice.For this to happen one should wait patiently, drafting the plaint is the other step
In the litigation stage, the first step is filing of the plaint by the plaintiff in response to which the defendant gives the
written statement along with all the documents relied upon him/her. The court shall then endeavour to refer the case to Alternative dispute resolution (ADR) for Arbitration or Mediation and this will happen before the issues are framed, framing of issues is the next step followed by an examination of parties both chief examination and cross-examination followed by hearing arguments of both sides by the respective advocates followed by the judge giving the judgement about the case by way of an order or a decree. The Aggrieved party can go for an appeal if it is not satisfied with the judgement.The last and final stage is that of execution of the decree or the order.
This is the manner of dispute resolution in our country but India being a country with huge population it becomes impossible for the courts to try and hear all the disputes,long list of cases still remain pending the judges are very less in number and the burdens on the courts are huge.To get this load off the courts,the Arbitration and Conciliation act,1996 comes into play .
Now what is arbitration and conciliation?
ARBITRATION is the dispute resolution mechanism whereby the disputes are not heard in the courts but the courts appoint an arbitrator who hears the grievances of
both the parties in the dispute settlement,the parties present their arguments and evidence about their cases and after hearing ,the arbitrator presents the judgement known as award.
In the case of Collins vs Collin, the Court held that “An arbitration is a reference to the decision of one or more persons, either with or without an umpire, of some matter or matters in difference between the parties.”
The arbitration agreement is defined as written under section 2(a) of the arbitration act ,1940 i.e. written agreement which present current or future dispute of parties to arbitration , irrespective of the name of the arbitrator in it or not. An arbitration agreement or an arbitration clause in an agreement is sometimes termed as ‘submission’. Arbitration agreement is also termed as ‘reference’.
Conciliation means settling disputes without litigation. It is an informal process in which conciliator i.e. third party tries to bring the disputants to agreement. He overcomes the disputable issues by lowering the tension, improvement in communication, interpreting issues, providing technical assistance, exploring potential solutions and bringing the negotiated settlement before the parties. Conciliator adopts his own method to resolve the dispute and the steps taken by him are not strict and legal. There is no need of agreement like arbitration agreement. The acceptance of settlement is needed by both of the parties.
Part III of the Arbitration and Conciliation act 1996 deals with conciliation. it is a voluntary proceeding where parties in dispute agree to resolve their dispute through conciliation. It is a flexible process which allows the parties to decide the time and place for conciliation, structure, content and terms of negotiations. In Conciliation, the conciliators are trained and qualified neutral person who help the conflicting parties to make them understand the issues in dispute and their interest to reach mutually accepted agreements. The conciliation process includes the discussion between the parties which is made with the participation of the conciliator. It covers many disputes like industrial disputes, marriage disputes, family disputes etc. This allows the parties to control the
output of their dispute. The result is also likely to be satisfactory.
The Indian judicial system has a very vast scope, daily huge amounts of cases are heard and tried in the courts and the population of millions still looks towards the judiciary for receiving justice, though in the modern time with an ever-increasing population and different types of disputes and conflicts arising among individuals and groups the burden on the courts continues to increase, hence the courts have developed a hand-off policy and have almost given the whole of the dispute resolution mechanism to the alternative dispute resolution mechanisms of arbitration and conciliation for quick redressal of public disputes. The judges already are fewer in number with respect to the number of cases in the country hence it becomes a necessity that these disputes be resolved outside courts as much as possible, this removes the load off the courts and the judiciary can focus on other matters.India is gaining grounds in strengthening dispute resolution through arbitration and conciliation and
very soon would be putting a mark internationally in arbitration matters.
The judiciary and the alternative dispute resolution committees should work in tandem and coordinate to provide a quick and just resolution of disputes!
L.L.B HONS 3rd year
Unity College(Lucknow University)