ADR: A Powerful Tool for Torts Disputes

Introduction

This article aims to discuss on how the cases of torts can be resolved using different Alternative Disputes Resolution mechanisms available in India/Bharat, such as Arbitration and Mediation. The article would be deeply discussing:

• Different tortious situations where ADR can be used
• Merits/Demerits of using ADR instead of traditional litigation
• The application of laws that are relevant in such cases

What are Torts?

Torts are civil wrongs that cause damage to a person. Unlike the offences described under the Bharatiya Nyaya Sanhita, that are criminal in nature and are against the whole state, torts are civil wrongs against an individual person or perhaps a section of persons. As per the Legal Information institute, housed at the 'Cornell Law School, USA', A tort is defined as "an act or omission that gives rise to injury or harm to another and amounts to a civil wrong for which courts impose liability. In the context of torts, "injury" describes the invasion of any legal right, whereas "harm" describes a loss or detriment that an individual suffers."

• Tort Laws are uncodified and they usually find their sources in judicial precedents.
• Torts can be against persons, like assault, battery and nuisance and against property as well, like trespass.
• Punishment in torts are usually in the form of damages/monetary liability.Tortious cases can be resolved using litigation and Alternative Disputes Resolution mechanisms too.

What is ADR?

As per NYCOURTS.GOV, "Alternative dispute resolution (ADR) refers to the different ways people can resolve disputes without a trial. Common ADR processes include mediation, arbitration, and neutral evaluation. These processes are generally confidential, less formal, and less stressful than traditional court proceedings. ADR often saves money and speeds settlement. In mediation, parties play an important role in resolving their own disputes. This often results in creative solutions, longerlasting outcomes, greater satisfaction, and improved relationships."

By this, we understand that it is a sensible choice to use Alternative Dispute Resolution mechanisms instead of traditional litigation to resolve tortious disputes since they are less time & money consuming and also more productive and satisfactory since the parties are actively involved in their proceedings unlike litigation.

ADR in India/Bharat

The laws that govern Alternative Dispute Resolution mechanisms in India/Bharat are the 'Arbitration & Conciliation Act of 1996' and 'The Mediation Act of 2023'. The two most popular forms of ADR in India are Arbitration and Mediation.

Arbitration

Arbitration is a procedure in which a dispute is submitted, by agreement of the parties, to one or more arbitrators who make a binding decision on the dispute. The decision of the Arbitrator is known as an arbitral award and it holds the same value as a judicial outcome.

Mediation

A means of resolving disputes outside of the judicial system by voluntary participation in negotiations structured by agreement of the parties and usually conducted under the guidance and supervision of a trained intermediary. The outcome of a mediation session is not binding on the parties.

Arbitration and Mediation: What's the difference?

The fundamental difference between Arbitration and Mediation is the nature of outcome, arbitration is a formal proceeding where the arbitrator aims at resolving the conflict between the two parties by giving a binding decision, whereas mediation is a more relaxed and informal interaction in which the mediator simply tries to felicitate conversation between the two parties and helps them reach a mutual decision, the outcome of a mediation is not binding on either of the parties.

How are cases referred to ADR?

Arbitration: Section 8 of the Arbitration and Conciliation Act, 1996 requires a judicial authority to direct parties to arbitration if there is a valid arbitration agreement between them and a dispute arises. This section aims to reduce judicial intervention by making arbitration mandatory when an arbitration clause is included in the parties' agreement.

Mediation: A means of resolving disputes outside of the judicial system by voluntary participation in negotiations structured by agreement of the parties and usually conducted under the guidance and supervision of a trained intermediary. The outcome of a mediation session is not binding on the parties.

Lok Adalat: Lok Adalat is one of the alternative dispute redressal mechanisms, it is a forum where disputes/cases pending in the court of law or at the pre-litigation stage are settled/ compromised amicably. Lok Adalats have been given statutory status under the Legal Services Authorities Act, 1987. Lok Adalats are often used to resolve family disputes, such as financial issues, property disputes, and matrimonial issues. The act gives Lok Adalat decisions the same status as civil court decrees, making them final and binding on all parties. No court can appeal Lok Adalat's decision.

Torts and ADR: Since torts are civil wrongs against an individual and not the whole society, and the remedy in such cases is usually damages/monetary compensation, ADR is a really effective tool to resolve such issues. The reasons for the same are :

The proceedings of ADR are a lot simpler than litigation.

Because of the direct involvement of parties, the aggrieved party gets the scope to communicate their concerns effectively, it also gives the respondent(s) enough room to provide explanation(s) for their act(s), leading to a fair and just resolution.

ADR requires lesser time and money.

A fair and just remedy is usually provided.

Case Law: Donoghue vs Stevenson:

• Facts: The plaintiff, Mrs May Donoghue drank a bottle of ginger beer in a café in Paisley, Renfrewshire. The beverage contained a decomposed snail because of which she fell ill and sued the manufacturer of the beer, Mr. Stevenson.
• Held: After around four years of litigation, The House of Lords on the 26th of May 1932 held that Mr. Stevenson owed a duty of care towards Mrs Donoghue.

Connection with ADR: Through litigation, the dispute took around four years to be resolved. However, instead of litigation, if some kind of ADR mechanism was employed in the case, such as arbitration or mediation, there are high chances for the case to be solved in a much lesser time because of the simplicity and fast-paced nature of ADR.

Torts and ADR: Are there any demerits?

Even though the employment of Alternative Disputes Resolution mechanisms in tortious cases has a large number of benefits as discussed above. However, it brings its own set of challenges as well. Following are a few disadvantages of using ADR in tortious cases :

• Lack of Precedent-Setting: In the past, court decisions in Tortious cases have led to the establishment of legal concepts and judicial precedents and practices, for instance, the concept of duty of care in Donoghue vs Stevenson and Strict Liability with Rylands vs Fletcher, these concepts that were set by these cases are some of the very basic legal principles in today's time, taught in law schools to freshers and followed universally. However, since ADR mechanisms like Arbitration and Mediation proceedings are conducted in a private, confidential setting, establishment of legal concepts and judicial precedents is not possible, restricting the development of the law.
• Inconsistent Remedies: The outcome of a dispute in ADR mechanisms like arbitration and mediations are subjected to the parties and the arbitrator/mediator, primarily because of the fact that every set of parties has different mindsets and situations and every arbitrator/mediator has a different approach of facilitating negotiation and dispute resolution. This leads to inconsistent remedies in similar cases.
• Confidentiality: While the confidential and private nature of ADR proceedings is often seen as an advantage, however in some tortious cases where factors like public safety, sanitation or health are involved that need proper public awareness and disclosure. ADR proceedings because of their nature of being private and confidential might prevent proper public disclosure and awareness.

Conclusion

To sum up everything that has been stated till this point, we can say that using ADR in order to resolve tortious cases can be a very sensible choice. Given the factors like cost effectiveness, flexibility and speedy remedies associated with ADR, it seems like a practical solution to solve tortious cases. However, this also has its own set of disadvantages such as the lack of precedent establishment and issues caused because of privacy and confidentiality, like lack of public awareness. To create a balance between the positive outcomes of employment of ADR with the disadvantages it brings along, parties must ensure that the usage of ADR does not bring a greater harm, that it is used only when the cases are not so significant and can be resolved at a personal level, without compromising on public awareness, justice and development of law as a whole.