BALLB- ADR and its Form.

The practice of resolving a dispute without going to court is called alternative dispute resolution. It is a supplement to court-ordered litigation. It alludes to a conflict resolution that takes place outside of the traditional court process. The third person serves as a mediator to resolve the conflicts. Arbitration, mediation, negotiation, conciliation, and other forms of ADR are the most common. ADR is less expensive and time-consuming than traditional judicial processes. ADR can be used to resolve conflicts in the areas of civil law, corporate law, family law, contract law, and intellectual property law. It is a cutting-edge idea for resolving conflicts. From the beginning, disputes in Nepal were resolved with Mukhia, Thakali, Pancha Kachahari, etc. The Development Committee Act 2013 helped to create the ADR idea for the first time. The modern concept of ADR is developed through international Law. Formally it was developed from the USA in 1610 AD. Later it was developed by UNCITRAL Laws made by the United Nations.

 

Characteristics or Features of ADR

i. Two or more than two parties having disputes

ii. Legal or factual differences of opinion between the parties

iii. Both parties shall strictly stand on their opinion

iv. Role of the third party to settle the dispute

v. Complementary to formal litigation

vi. Disputes can be settled beyond the courtroom

vii. It can only be applied to settle the civil disputes

 

Advantages of ADR

I. Less expensive than a formal court procedure

II. Less time consuming

III. Simple and more flexible

IV. More confidential

V. Mutual relation between the parties

VI. Autonomy of parties to select negotiator, mediator or arbitrator

VII. Easier to implement the decisions

VIII. Voluntary implementation of decisions

IX. Win-Win situation

X. Easy to access justice

 

 

FORMS OF ADR

 A. Decentralized  Justice system

B. Arbitration

C. Mediation

D. Conciliation

E. Others

 

A. Decentralized Justice System

Settlement of disputes through local agencies.One of the mediums to deliver justice. Local Self-governance Act 2055 vested rights to VDC and municipalities to settle specific disputes. The Constitution of Nepal has made provision for a judicial committee to settle petty cases. Section 47  of the Local Government ( operation and management ) Act 2074 has made provision that the Local Government shall have the right to settle disputes for punishment less than a year in criminal cases, to settle mutual disputes, to make compromises etc.

  

B. Arbitration

It is the most frequently used technique of ADR. Disputant parties choose the arbitrator by their choice. A decision given by an arbitrator is known as an award. A decision given by an arbitrator is final.. Parties shall have the right to choose an arbitrator, Procedure of Arbitration and place to arbitrate. In Nepal, the Arbitration Act 2055 is the main law to settle disputes. Arbitration Act 2055 was made in accordance with the UNCITRAL model. For the first time, arbitration had been developed through the Development Committee Act in 2013.

 

C. Mediation

It is a technique to settle disputes relating to contract, trade and family issues. Parties can choose a mediator who acts as a facilitator to settle the disputes. A decision given by a mediator is not binding on the parties. The mediator acts as the facilitator. Supreme Court Rules 2074 defines mediation as the voluntary and confidential process to settle the dispute between disputant parties where a third party acts as a neutral facilitator who helps parties to reach a mutually accepted agreement. The role of the mediator is to create favourable conditions, for both parties to reach mutually accepted agreements. In the context of Nepal, the Mediation Act 2068 regulates all the matters relating to mediation.

 

D. Conciliation

The third-party tries to make a conversation between the disputing parties. The conciliator creates an environment for negotiation and searches for other alternative techniques to settle the disputes. A conciliator helps to make a mutual agreement between the parties. In most cases, business-related issues can be settled through conciliation. Conciliator plays a crucial role in mediating between the disputant parties based on laws and precedent. The concept of conciliation was developed through the conciliation rule made by the UN in 1980 AD. In the context of Nepal, disputes relating to international contracts and agreements can settled first by conciliation and then by arbitration. UNCITRAL, WTO  rules of optional conciliation are the major regulations to regulate disputes through conciliation

 Legal Provisons relating to ADR

Laws relating to ADR in Nepal are as follows: -

1. Arbitration Act, 2055

2. Mediation Act,2068  

3. Local Government (operation and management ) Act,2074

4. Industrial Enterprise Act,2073

5. Privatization Act,2050

6. Labor Act 2074

7. Insurance Act 2049

8. Development Committee Act,2013

9. Civil Code 2074, Civil Procedure Code 2074

10. Criminal Code 2074, Criminal Procedure Code 2074

11. Supreme Court Regulation, 2074

13. High Court Regulation, 2073

14. District Court Regulation,2075.