May 1st, 2021

It is a pleasure and an honour to write an inaugural post for the new ADR blog at the University School of Law and Legal Studies, Guru Gobind Singh Indraprastha University, New Delhi. I wish all those interested in ADR at the law school and all those working on the ADR blog every success.

ADR popularly stands for ‘alternative dispute resolution’. Sometimes people call it ‘amicable dispute resolution’. And then for others it is ‘appropriate dispute resolution’.

Now, the question arises – Alternative? Alternative to what? Traditionally, this refers to an alternative or a choice of alternatives to litigation, as is well known. More broadly, this means an alternative to rules-based or power-based decision-making in resolving disputes of all kinds. Resolutions are achieved not by means of rights (laws) or power (the authority of the decision-maker) but are based on the interests of the parties involved. These interests may be substantial and material, meaning that they are based on the resources (money, time, people, land, performance) that the parties need. Or they may be process and relationship-based, meaning that it is important to decide how the parties negotiate and what bearing the relationship between them has. A rights-based or power-based decision generally has far less scope to take into account the complexity of these different interests. The parties have less to say about both process and result.

This is not just a matter of civil disputes traditionally brought before courts and transferred to an alternative process, such as mediation. Imagine all the different forms of dispute and conflict – in and between organisations and businesses, neighbourhoods, countries and families. Can an alternative way to discuss and resolve these be beneficial? Can interests and not power prevail? Sometimes, the answer is yes.

The paradigm shift that this involves touches on the second wording for ADR: amicable dispute resolution. The term ‘amicable’ here refers to the need for the parties to agree on the process they use to try to resolve their differences. To get to mediation, they usually have to agree to mediate, as they do with arbitration and conciliation as well. If the process then comes so far, they may reach at an amicable resolution, where they agree on the terms of that resolution, or amicably agree to pass some of the authority for the resolution to a third party. To avoid any misunderstanding, the term ‘amicable’ does not always mean friendly, constructive, or even benevolent. But it does mean the willingness to follow a new paradigm and pathway as to how to find a solution. The decision on process lies with the parties. Given that there are many different forms of mediation and conciliation, an evolving spectrum in a growing market with increasing sophistication, parties have greater power to influence how their disputes are negotiated and resolved. This transformation of process can also lead to other transformations, including of perspectives and relationships.

Thirdly, when we talk of appropriate dispute resolution, we mean that the right process can be selected for the right dispute. Many disputes by their nature should be adjudicated by a court of law. ADR should not detract from the importance of rule of law and access to justice. Equally, many disputes will be better addressed through more appropriate processes of negotiation, mediation and conciliation. This is where education and awareness play a major role. A good counsel will wisely advise the parties to a dispute on the best process that meets their interests and, on the costs and benefits of different processes. Therefore, it is important that lawyers and future lawyers are aware of the alternatives for appropriate resolution.

Finally, there is decision-making in mediation itself. In mediation, as a form of alternative, amicable and appropriate dispute resolution mechanism, the parties can make their own decisions on process and on substance, including on what they wish to discuss and how, and on what the terms of any agreement may be. The decisions lie in the hands of the parties to the dispute. Mediation must not primarily be viewed as an alternative to litigation and civil disputes, but as a decision-making process facilitated by an impartial third party. Facilitated decision making: in families, in and between businesses, in organisations, neighbourhoods, often when there are no rights-based (law-related) claims at stake, or even no hardened disputes or conflicts, but a need for structure in shared decision-making. Mediation as a mechanism can be used by society at large, its scope not just limited to the legal profession. This is the alternative that mediation has to offer.