Litigation or ADR which one to choose?
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.
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.
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.
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.
