Alternative Dispute Resolution

Alternative dispute resolution (ADR) includes Dispute Resolution processes and techniques that fall outside of the government judicial process. Despite historic resistance to ADR by both parties and their advocates, ADR has gained widespread acceptance among both the general public and the Legal Profession in recent years. In fact, some courts now require some parties to resort to ADR of some type, usually mediation, before permitting the parties' cases to be tried. The rising popularity of ADR can be explained by the increasing caseload of traditional courts, the perception that ADR imposes fewer costs than litigation, a preference for confidentiality, and the desire of some parties to have greater control over the selection of the individual or individuals who will decide their dispute.

ADR is generally classified into at least three subtypes: Negotiation , Mediation , and Arbitration . (Sometimes a fourth type, conciliation, is included as well, but for present purposes it can be regarded as a form of mediation. See Conciliation for further details.) The salient features of each type are as follows:

In Negotiation , participation is voluntary and there is no third party who facilitates the resolution process or imposes a resolution.

In Mediation , there is a Third Party , a mediator, who facilitates the resolution process (and may even suggest a resolution, typically known as a "mediator's proposal"), but does ''not'' impose a resolution on the parties. In some countries (for example, the United Kingdom ), ADR is synonymous with what is generally referred to as mediation in other countries.

In Arbitration , participation is typically voluntary, and there is a third party who, as a private judge, imposes a resolution. Arbitrations often occur because parties to contracts agree that any future dispute concerning the agreement will be resolved by arbitration. This is known as a 'Scott Avery Clause'. In recent years, the enforceability of arbitration clauses, particularly in the context of consumer agreements (e.g., Credit Card agreements), has drawn scrutiny from courts. Although parties may appeal arbitration outcomes to courts, such appeals face an exacting Standard Of Review .

"Alternative" dispute resolution is usually considered to be alternative to Litigation . It also can be used as a Colloquialism for allowing a dispute to drop or as an alternative to Violence .

ADR can increasingly be conducted online or by using technology. This branch of dispute resolution is known as Online Dispute Resolution (ODR). It should be noted, however, that ODR services can be provided by government entities, and as such may form part of the litigation process. Moreover, they can be provided on a global scale, where no effective domestic remedies are available to disputing parties, as in the case of the UDRP and Domain Name disputes. In this respect, ODR might not satisfy the "alternative" element of ADR.

ADR IN PAKISTAN

In Pakistan, ADR is in vogue since long. The relevant laws (or particular provisions) dealing with the ADR are summarised as under:

1. S.89-A of the Civil Procedure Code, 1908 (as amended in 2002) read with Order X Rule 1-A (deals with alternative dispute resolution methods).
2. The Small Claims and Minor Offences Courts Ordinanace, 2002.
3. Sections 102-106 of the Local Government Ordinance, 2001.
4. Sections 10 and 12 of the Family Courts Act, 1964.
5. Chapter XXII of the Code of Criminal Procedure, 1898 (summary trial provisions).
6. The Arbitration Act, 1940.
7. Articles 153-154 of the Constitution of Pakistan, 1973 (Council of Common Interest)
8. Article 156 of the Constitution of Pakistan, 1973 (National Economic Council)
9. Article 160 of the Constitution of Pakistan, 1973 (National Finance Commission)
10.Article 184 of the Constitution of Pakistan, 1973 (Original Jurisdiction when federal or provincial governments are at dispute with one another)

ADR IN INDIA

Alternative dispute resolution in India is not new and it was in existence even under the previous Arbitration Act, 1940. The Arbitration and Conciliation Act, 1996 has been enacted to accommodate the harmonisation mandates of UNCITRAL Model. To streamline the Indian legal system the traditional civil law known as Code of Civil Procedure, (CPC) 1908 has also been amended and section 89 has been introduced. Section 89 (1) of CPC provides an option for the settlement of disputes outside the court. It provides that where it appears to the court that there exist elements, which may be acceptable to the parties, the court may formulate the terms of a possible settlement and refer the same for arbitration, conciliation, mediation or judicial settlement.

ADDITIONAL RESOURCES

CUNY Dispute Resolution Consortium at John Jay College of Criminal Justice - 'The Dispute Resolution Headquarters in New York City'

9/11

The International Institute for Conflict Prevention and Resolution - The International Institute for Conflict Prevention and Resolution, known as the CPR Institute, is a New York City membership-based nonprofit organization that promotes excellence and innovation in public and private dispute resolution, serving as a primary multinational resource for avoidance, management, and resolution of business-related disputes. The CPR Institute was founded in 1979 as the Center for Public Resources by a coalition of leading corporate general counsel dedicated to identifying and applying appropriate alternative solutions to business disputes, thereby mitigating the extraordinary costs of lengthy court trials. CPR’s mission is “to spearhead innovation and promote excellence in public and private dispute resolution, and to serve as a primary multinational resource for avoidance, management and resolution of business-related and other disputes.” CPR is a nonprofit educational corporation existing under the New York state laws, and is tax exempt pursuant to Section 501(c)(3) of the U.S. Internal Revenue Code. It is governed by a board of directors, and its priorities and policies are guided in large part by consultation with an executive advisory committee. Its funding derives in principle part from the annual contributions of its member organizations, and from its mission-related programming. The various operations and activities that fulfill the Institute’s mission are captured in the acronym of its name:

C: CPR convenes legal and business leadership to develop, and encourage the
exchange of, best practices in avoiding, managing and resolving disputes.

P: CPR publishes its own work and that of other like-minded organizations,
making resources available to a global community of problem-solvers.

R: CPR helps to resolve complex disputes among sophisticated parties, by devising
rules, protocols and best practices, and by providing disputants with resources and
consulting expertise in selecting appropriate methods and neutrals to assist in the
dispute resolution process.

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