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13 Reasons Why ADR is better than Litigation | Overview
- Flexibility and control
- Simplified rules of evidence and discovery
- Privacy and confidentiality
- Final judgment is based on the agreement
- Focuses more on the parties
- Informal setting
- Relationships are preserved
- Efficient and effective
- Binding on the parties
- The conventional way of dispute resolution
This article discusses 13 reasons why ADR is better than litigation. When the parties to a dispute amicably decide on settling their dispute in a way that both of them are satisfied with the outcome, ADR is the best choice to make. Alternative Dispute Resolution is the finest, most extraordinary invention in the field of law in modern times.
It is not only light on the pocket but also peaceful. It suits the lifestyle of professionals in modern times. Litigation, on the other hand, is expensive, lengthy and adversarial.
There are several reasons why one should choose ADR over litigation. In this article, we would discuss 13 reasons why ADR is better than the conventional practice of Litigation.
Flexibility and control
ADR is based on the principals of negotiations, discussions, deliberations, and diplomacy. The procedure is normally party-based. All the important decisions are taken by the parties, for example, the venue of hearing and the choice of the moderator. Unlike the jury, the moderator does not control the process. No decision is taken until both parties agree to it. The date and time of the process are also fixed by the parties according to their choice. In some processes of ADR like negotiation the parties solely decide on the procedure.
In modern work with urgent job requirements and deadlines, it becomes extremely difficult for people to balance both ends. ADR comes to the rescue, with its flexibility it offers the parties the best way to resolve their disputes. The practice of Arbitration in India which falls under the Arbitration and Conciliation Act of 1996 does not follow the Civil Procedure Code in most of its procedures. This increases the flexibility of the process of ADR.
Litigation is a lengthy process. It takes generations for a litigation suit to ultimately reach its culmination and serve the deserving parties with the justice that they long deserved. In some civil suits in general and land disputes, in particular, the parties who originated the suit die. ADR, on the other hand, serves the parties with the required justice well in time.
One of the main reasons for this is that the ADR system is based on a case-specific model. This implies that a particular tribunal will be responsible to hear only one particular case and then it is dissolved. ADR thus provides the parties with a focused, goal-oriented approach to ultimately reach the justice level it deserves.
As mentioned earlier litigation is very bad for the pocket of the parties. The costs involved in a litigation suit include the fees of the counsel, court fees, the travelling charges to and from the court, notary charge, etc. The expenses of the parties keep on mounting upon the account of the lengthy process of litigation. It is difficult for families who are not financially stable to continue the suit.
ADR on the other hand is cost-effective and provides the parties a one-time charge after which the parties are not troubled with any other additional expenses. It helps in administering justice at a low rate.
Simplified rules of evidence and discovery
Litigation in India is based on the adversarial judicial system which is dependent on evidence and the facts of the cases. The adversarial system makes litigation a lengthy process. In order to get the appropriate evidence, the court delays the proceedings and issues several subpoenas and hearings. ADR is not based on the adversarial judicial system.
Arbitration and Conciliation do not depend on the Law of Evidence in India. The process is party-specific and there are no strict rules of evidence or procedure. The parties mutually decide to settle the dispute and can pass over their right to any third person, and grant him the permission of deciding the case on his behalf.
Privacy and confidentiality
Litigation is a public affair; the courts generally have the right to an audience. It is specifically devastating for some clients because it drastically affects their reputation. For example, in the litigations concerning commercial matters the presence of the audience would imply negative repercussions on the reputation of the company or business. The reputation of the business is pivotal to its profit-making ventures.
Thus big-companies prefer to settle their disputes in an amicable manner in a private setting. ADR provides the luxury of privacy and confidentiality to the parties, the facts are well protected and never leave the four walls of the room. With the new development of transparency in the ADR mechanism, the facts of the case can be subjected to getting published but this can only happen if the parties agree to it. Litigation can never promise the transparency that ADR can promise. The party’s privacy is the utmost for the coordinator.
This is majorly seen during mediation, the mediator calls for a caucus when the party is hesitant to reveal confidential information. The caucus is a private session the mediator has with individual parties to ensure that the information is protected.
Final judgment is based on the agreement
ADR is an amicable process. The opinions and decisions of the parties are integral to the process of ADR. No judgment can be passed until and unless the parties have agreed to it. Litigation establishes a win-lose situation where the parties may not be satisfied with the outcome of the judgment all the time. ADR however, establishes a win-win situation because it is established by rounds of deliberations between the parties in order to settle their disputes.
The coordinator/moderator/mediator/arbitrator cannot declare the ADR process successful until the parties are completely satisfied with its outcome. No arbitration award can be made until both the parties’ ascent to it. This is the reason why ADR is demanded by most of the parties in a dispute.
Focuses more on the parties
In litigation, a number of things are taken into consideration which prevents the court from completely satisfying both of the parties. In litigation, the law is given prime importance while in ADR the intention of the parties to settle the dispute amicably is given prime importance. Once the parties to a dispute decide on settling the matter through a common deliberative process, the entire process of ADR facilitates the intention of the parties. The parties are given the onus of selecting the venue, the date, time, procedure, etc.
Litigation is formal; the setting is official with a number of lawyers waiting for completing the business of the court. ADR, on the other hand, is informal; the setting of the session is like that of a formal discussion between two parties. In a mediation session, the parties are addressed by the mediator before the session begins.
The mediators remind the parties that the process is a client-friendly process and that the mediator’s work is to facilitate the discussion of the terms predetermined by the parties.
The best part about a mediation session is that complete attention can be given to the case at hand. There are no other causes waiting to be heard in the session.
Relationships are preserved
Since the parties in an ADR session do not argue and are just engaged in informal discussion, the chance of preservation of friendly relationship after the settlement of claims and disputes become more common. The parties to a dispute have a strained relationship with one another. Litigation is an aggressive process where the parties try to find the most vulnerable part of the parties. The preservation of friendly relationships after a judgment in litigation is nearly impossible.
In ADR however, the parties discuss to find a middle ground and reach a solution to the dispute that has arisen. It is also extremely apt for relationships between colleagues who have to work with each other after the resolution of the dispute. Since ADR promotes face-to-face discussion, one knows that all problems are solved if one agrees to discuss.
The process of ADR is always based on the principles of neutrality and audi-alterem-partem. As mentioned earlier, no final judgment can be achieved if the parties do not give their assent. Thus it is ensured that fairness is maintained while dealing with the parties. In a litigation suit, the jury sometimes gives more importance to the law to the facts. A judgment of a Litigation suit can sometimes be criticized as being unfair, but it is not the case with ADR.
ADR is not strictly bound by any procedural or substantive law. This means that the parties are served justice according to fairness and neutrality.
Efficient and effective
The courts are overburdened with cases and do not have the opportunity to pay complete attention to one particular case. This is not the case with ADR. ADR allows the parties to dispute complete attention. Rather, it would be reasonable to say that the system of ADR was formulated to allow focused administration of justice. This increases the efficiency of the system of ADR and makes it increasingly effective in solving problems.
Binding on the parties
One of the greatest advantages of ADR is that it is binding on the parties and there are limited opportunities for appealing the award or the agreement passed after the successful completion of the process. Since the awards are binding on the parties, it is improbable that the parties would do anything in opposition to what is written in the agreement.
There is an increased surety that the parties will follow the clauses discussed in the session that finds its way to the final agreement.
The conventional way of dispute resolution
The system of ADR is not particularly old nor is it dependent upon the statutes written down in history. Furthermore, with the increase in the organizations providing ADR services with the coordinators of the process of ADR are efficient, experienced and also fit for dealing with international standard cases.
The organizations ensure that cutting edge modern technologies are incorporated in the ADR processes to make the process available to a large number of people and increase the acceptance of people to this process of Dispute Resolution.