Introduction
“It is the spirit and not the form of law that keeps the justice alive” – LJ Earl Warren
Private Judging is a dispute resolution process between two or more parties through an independent third person; mainly a retired or former judge who is expertise in the area of dispute hears the case and analyzes the evidence and resolve the matter out of the court. This is an alternative dispute resolution (ADR) method which is prevailing in India for a very long time in the form of Puga, Sreni, Kula, and also in Panchayats. This method is generally used for settling civil disputes which ensures practical, inexpensive, flexible, and speedy resolution of disputes in accordance with the parties.
There are some types of alternative dispute resolution like Arbitration, Conciliation, Mediation, negotiation, Lok Adalat, online dispute resolution in which some of them are practiced in India effectively because of the huge pendency of cases in the court and some of them are not. On the other hand, there are also some loopholes in some of the alternative dispute resolution methods in India.
Modes and Practices of ADR in India
- Arbitration
- Conciliation
- Mediation
- Negotiation
Arbitration
According to section 2(a) of Arbitration and Conciliation Act, 1996 “Arbitration means any arbitration whether or not administered by permanent Arbitral institution”.
Arbitration is a useful compliment to the judicial process which offers an alternative forum to the time consuming and expensive court proceedings and resolves the dispute with the consensus of the parties. It is a dispute resolution method in which the parties keep away from the court measures and as an alternative decide to resolve their dispute through appointing a third person, who is known as an arbitrator. All matters relating to private rights and obligations which civil court may take cognizance of (sec 9 of civil procedure court, 1908) may refer to arbitration like damages in case of breach of contract, validity of marriage, maintenance, separation between husband and wife etc. Indian law with the introduction of the Arbitration and conciliation Act, 1996 that came into force with effect from 25th January, 1996 is now trending the path walked upon by other developed nations.
In Guru Nanak Foundation v. Rattan Singh and Sons, the court stated that the court procedures are interminable, time consuming, complex, and expensive which impelled jurists to search for an alternative forum which are less formal, more effective, and speedy for resolution of disputes.
The reason due to which it is more preferable is because of its some of the advantages like avoidance of publicity, simplicity of procedure, Avoidance of delay, Reduction of expenses, savings of time etc.
Conversely, there are also certain challenges where the arbitration lacks in providing proper arbitral awards and claims. Along with some advantages, it also has loopholes along with it.
However, the way in which the proceedings under the Act are conducted and without exception challenged in Courts, has made Lawyers laugh and legal philosophers weep…Informal Forum chosen by the parties for expeditious disposal of their disputes has by the decisions of the Court been clothed with ‘legalese’ of unforeseeable complexity.” Stated by Justice DA Desai in Guru Nanak Foundation v. Rattan Singh and Sons,
· The arbitrator may act sometimes incompetent or biased in some cases.
· The procedure is informal which results to injustice to the parties.
· If it is made mandatory by the parties entering into contact that the dispute is resolved through arbitration, then their right to approach the court is waived.
· Arbitration does not provide for the grant of interlocutory applications.
· Arbitration awards are not directly enforceable. They are executable subject to judicial approval.
· Lack of domain expert.
Conciliation
Like Arbitration the word “Conciliation” is not defined in the Act. As compared to the court system Arbitration is considered private but Conciliation is mote private than Arbitration. In Conciliation proceedings the parties have the privilege to negotiate and arrive at a harmonious settlement.
Conciliation is an informal method during which the third party (Conciliator) tries to bring the disputants to the agreement. The party presents their case to neutral judge i.e. the conciliator who assists in settlement, which is normally satisfactory to the disputing parties as it is coming from neutral sources. The conciliator is not an arbitrator and is not bound by law in order to do, what he thinks just and reasonable. This is an accepted method of resolving difference and disputes across the developed world.
· The method of conciliation is not binding upon the parties to the dispute.
· There is no avenue for appeal.
· The parties may not come to an end.
· Procedure is so informal that the parties will not take it seriously.
Mediation
Mediation is a method by which a third party persuades the other disagreeing parties to hear one another in order to find a common area of agreement, thus enabling the parties to reach a mutually agreed outcome.
· Since the decision is at the discretion of the parties, there is the possibility that a settlement between the parties may not arise.
· It lacks the support of any judicial authority in its conduct.
· Mediation proceedings are lacking in any procedural formality since they are not based on any legal principle.
· The truth of an issue may not be revealed.
Negotiation
Negotiation is a dialogue proposed to resolve disputes, to produce an agreement upon courses of action, to bargain for individual or collective advantage, or to craft outcomes to satisfy various interests. It is the principal technique of alternative dispute resolution.
· The parties to the dispute may not come to the settlement.
· Lack of legal protection of the parties to the conflict.
· Imbalance of power between the parties is possible in negotiation.
Conclusion
Private judging in the form of some of the Alternative Dispute Resolution is present in India from the past times in which Arbitration and Conciliation Act, 1996 is made with not a satisfying provisions in India which is also amended in 2018 but still is not satisfactory and not capable enough to run in an efficient manner to resolve all the disputes because of many reasons like its informal procedure, or lack of expert domain. Even now days the Arbitrators demand a high price for their expertise which is not possible for the small companies to resolve it through arbitration. Even the method of Mediation and negotiation does not govern in India through any Act. There is also many loopholes in all these private judging method. Therefore, I think there is a need for better provision to be made in India for making India an Arbitration Hub and there is lots to do for the efficient working of private judging in India. Also, there is a need of private judging because of the pendency of cases in judicial system of India and it will work in India until and unless better provision to be made.
References
https://blog.ipleaders.in/arbitration-mediation-and-conciliation-different/
https://www.lawctopus.com/academike/arbitration-adr-in-india
https://www.iosrjournals.org/iosr-jhss/papers/Vol4-issue3/A0430107.pdf
https://www.scribd.com/document/439923162/Business-Law-NMIMS-doc
