Introduction

New Trends in ADR – The following article is aimed at enhancing the understanding of the new trends and legal challenges in the field of ADR (Alternative Dispute Resolution). This is colloquially referred to as EDR that stands for External Dispute Resolution. The following article would give you a holistic understanding of the concept. It will further enhance in understanding the emerging trends and prevalent challenges in ADR.

What is ADR?

Alternative Dispute Resolution (ADR) stands for a wide range of processes and techniques for resolving disputes. It acts as a medium for concerned disagreeing parties to come into an agreement of short or temporary litigation. This means it is a collective term for methods through which parties can settle disputes, with the help of a third party. It is increasingly being utilized as a tool to help settle disputes along with the system of the court. The following procedure started gaining momentum in the late 1990s. Mediation became the most reliable way to create an intercession and resolve conflict. Gradually, most of the companies began utilizing mediation instead of arbitration in general to resolve any kind of conflict. Most of the conflict would revolve around commercial contracts, individual employment, IPR, personal injury, products and liability, and real estate.

ADR in Practical Scenario

Although it is a tool that receive wide acceptance from the general public as well as the legal fraternity. However, when we bring Alternative Dispute resolution in the practical scenario as a mechanism for the resolution of disputes, we need to keep in mind the challenges as well as the emerging trends in the concerned field. The three most commonly used ADR mechanisms include mediation, arbitration, and med-arb (alternatively, arb-med). In times that we face Technology is to be used as a tool of transformation. This is duly challenging. The concept of a virtual ADR, virtual hearings, and online dispute resolution is duly to be incorporated. Although the physical system of hearing cannot be completely done away with. Digital literacy is an emerging trend in the legal fraternity, in countries like India, it is extremely challenging.

In the Indian Scenario,

1) Lawyers and corporate employees are under tremendous pressure to manage costs. As an alternate, third-party funding comes out as an innovative tool to manage risk and cost.

2) It has been clearly stated that progress had been made towards the laying of groundwork for effective and reliable arbitration proceedings. Similar efforts and progress is required at the regulatory level for the flourishing of the third party funding.

3) The current need is the expedition of the regulatory framework of TPF in India. This is because ADR and arbitration have shown exponential growth and TPF can act as a catalyst to spur the growth.

If we consider the International arbitration,

When we discuss the future of international arbitration, we need to keep in mind the COVID pandemic as well as the post COVID scenario. In the backdrop of the Pandemic, the access to justice for commercial issues is extremely limited and it would consume a good span of time and resources to bring the traditional system of delivering justice at par with speeding technology and infrastructure. Therefore, the only plausible solution is to shift to ADR implying mediation/arbitration, as per the pragmatic considerations.

Mediation/Arbitration

1) Instead of considering Arbitration or mediation as secondary. ADR and the concerned mechanism should deserve the primacy although it is challenging. The present crisis of the Pandemic subsequently brings in an economic crisis. Quick, Concrete and Workable resolution through mediation is a big source of hope.

Codifying laws of mediation is the central need of the hour.

2) A single method or format of dispute resolution is not going to cater to the needs of all the industries. In the house, counsels would need strategically thinking. To make mediation more effective there should be a proper legal infrastructure.

3) Lawyers really need to act as the Chief Negotiation Officers to mediate the issues than converting them into disputes and initiating litigation.

4) Arbitration, however, is a preferred ADR in India according to the latest legal surveys. India has now become one of the top three seats for arbitration worldwide. The other two being Singapore and England. PwC conducted a survey on Corporate Attitudes and Practices towards Arbitration in India. Also, 95 percent of the surveyed Indian companies used arbitration. In some cases, it was used in isolation. In most of the companies however, it was used in combination with other dispute resolution mechanisms.

Challenges in the implementation of virtual courts,

It is extremely challenging to execute the idea of a virtual court. This is because technology often acts as a hindrance. Even though if the idea is properly executed the benefits would outweigh the adverse impact. Physical courts however, will continue to co-exist. The matters would require classification in terms of what needs to be transferred from physical court to a virtual court.

Primary Aims of ADR

In conclusion, what we need to understand is Alternative Dispute resolution primarily aims to mediate conflict between parties. It is extremely crucial for the parties to discuss and analyze whether the matter is at all ripe for mediation. Once there is a core understanding of the issues that is the time when this method is to bring under consideration. It is because although it is a relatively peaceful and harmonious way to resolve conflict, it remains in parity with the legal infrastructure.

ADR or Traditional System of Litigation

Most of the companies and firms be it India or around the world prefer ADR compared to the traditional system of litigation. This is because it is comparatively harmonious. It is a phenomenon that is directed towards the minimization of the cost and the maximization of the value. It is aimed at holistically balancing risk and rewards. Society is dynamic; therefore the mechanism to resolve disputes undergoes continuous changes. A society that is propelled by the internet now makes a wider amount of information accessible to the mass.

Therefore, even in the field of ADR new trends will continue emerging. However, the aim is to give more importance to ADR even though the traditional system of litigation will never be completely done away with.