Abstract

Rule of law and ADR are one of the benchmark in determining the underdeveloped world from the developed. Therefore, in today’s contemporary world, the role and application of alternative dispute resolution (ADR) is increasingly attracting attention in legal and academic discourses. Its application in various jurisdictions particularly is said to strengthen the rule of law. From a development perspective, the main aim of ADR is to increase the possibilities and opportunities for the underprivileged to attain maximum social, economic and legal rights in their daily lives. This in turn helps the rule of law to sustain and consolidate contributing to human security, well-being, and dignity- a vital component for progress and socio-economic developed. ADR modes in a supplementary component in legal domain such as commercial arbitration and court-annexed mediation in civil litigation, also provides immense benefits for development. The purpose of this paper is to briefly review the efficacy of ADR modes in different jurisdictions. It then examines how ADR impacts the rule of law. The paper finds that the adoption of various ADR modes has made a considerable impact in various jurisdictions.

Key Words

Alternative Dispute Resolution (ADR), Rule of Law (ROL)

Introduction

Over the last few decades, legal system has experienced an overwhelming consensus and a revolution in the discourse around dispute settlement. ADR is now being used by judges as a means of reducing the burdensome backlog of judicial activity. State regimes are more likely to employ active sponsorship as a means of reducing spending on the courts due to the inefficiencies and injustices of the complicated legal systems. Justice that is swift, prompt, and at your door is a widespread phenomenon that is not only present in developed nations. Individuals without sufficient financial resources rarely have access to justice in several Western nations, including Italy and the United States. Even in the case of a straightforward issue, it often takes years to obtain a verdict due to the unbearably high expense and delay. According to the Lord Wolf Final Report, ADR should be used before and after the issuance of court proceedings in order to reach an early resolution. Court proceedings should only be used as a last resort. The Final Report (1996) states that:

At case management conferences and pre-trial reviews, the court will promote the use of ADR and will consider whether the parties have unreasonably declined to try ADR or acted inappropriately during ADR (Farrow, 2014, pp.78-79). The ADR mechanism reached an unprecedented height of concern in the 1960s, according to American society. The ADR movement was essential in the civil rights struggle and later established itself as a cornerstone of the American legal system. There are now about 20 alternative legal dispute settlement methods accepted by American lawyers. The three most well-known processes are negotiation, mediation, and arbitration (Nosyreva, 2001, p.1). In the US, ADR mechanisms are now being developed. With well over 150 minor conflict mediation centres in around forty states, court-annexed arbitration is used more frequently in both state and federal courts (Edwards, 1985, p.668).

Japan, one of the most industrialized nations in the world, has implemented ADR processes in administrative agencies as well as courts, and each court has set up its own conciliatory board. Statistics show that a sizable number of disagreements are resolved satisfactorily in various fields i.e. Public pollution, labour disputes, construction disputes, consumer disputes, traffic accidents, etc. (Cappelletti, 1993, p.55). Australia's courts and tribunals currently provide a wide range of referral practices and procedures, including conciliation, arbitration, settlement conferences, and mediation, that cover the full range of these ADR processes. The mediation procedure is the one that is most frequently used and acknowledged.

The frequency of civil and commercial conflicts in China has risen sharply along with the country's economy and society. For both domestic and foreign investors, there are two alternatives to courtroom litigation in China: mediation and arbitration. Based on the parties' permission, mediation is the most popular, effective, and efficient method for resolving disputes of a civil nature (Yanming, 2016). By mandating the establishment of the People's Mediation Committees by residential and village committees, the 1982 Chinese Constitution further institutionalized this structure (PMC). In contrast to court proceedings, which frequently follow the law, mediation is more ad hoc in nature and necessitates unique solutions for various situations. China had 5.7 million conflicts handled by 6.8 million mediators and 870,000 PMCs in 2003 (Tang, 2009, p.81). The 1960 Civil Code and the 1965 Civil Procedure Code were the first attempts to incorporate ADR into Ethiopia's legal system. Actually, Ethiopian legislation includes the ADR in practice (Gowak, 2008).

Family issues accounted for 42% of the cases resolved by people's conciliation in 1999, followed by neighbour disputes (47%), and other disputes (11%), according to a survey of Beijing's Haidian Street Business Office, a leading institution for people's conciliation. 62% of the parties in these cases were over 50, 28% were between 30 and 50, and only 1% were under the age of 18 (Younger than 30 years old). The study discovered that 95% of disputes were successfully resolved using conciliation, and 90% of agreements made through conciliation were upheld voluntarily (Wenying, 2005). The survey shows that the conciliatory mode has played a positive contribution to dispute settlement.

Countries that have taken steps toward the ADR regime include those where the FJS is seen as more expensive, vulnerable, and based on a drawn-out process. In India, where the Privy Council affirmed the Panchayat's decision in Sitanna V/S Viranna, Sir John Wallis observed that the reference to a local Panchayat is the time-honoured method of resolving disputes. The award avoids protracted litigation since it is founded on real facts that the adjudicators have personally verified. It is the fair and honest resolution of disputed claims based on legal and moral considerations. According to the decision in Pt Thomas V/S Thomas Job, the experiment of Lok-Adalat as a distinct method of conflict settlement has come to be acknowledged in India as a workable, affordable, effective, and informal one. It was decided in the case of Bhasheer v. Kerala State Housing Board that the ADR process of arbitration, conciliation, and mediation must be used to settle the majority of claims in developing nations (Farhat, 2018, p.145).

As stated in the Supreme Court of Pakistan's detailed Verdict in NCSW's Constitutional Petition against Jirga's/Panchayats (CP # 24/2012 p-5), Justice Saqib Nisar and Justice IjazulIhsan determined that nothing in this opinion should be interpreted in a way that any disgrace or bad-feeling is associated with the words "Jirga" or "Panchayat," which may operate within the permitted boundaries of the law as outlined hereinabove to the degree of performing as ADR, such as arbitration, negotiation, mediation and reconciliation organization/committees.  Kazakhstan signed a new Civil Procedure Code that empowers the use of alternative procedures for dispute resolution (Kamla, 2020). In the modern day, the role of the female mediator has gained enormous attention. 57% of the participants in the mediation training were female. Similarly, under the (EBR) initiative, 15 Mongolian mediators acquired international mediation certification; more than half of them were women (Birken & O'Sullivan, 2019, p.211).

In conclusion, it is important to note that many state jurisdictions have launched significant measures for the privatization and formalization of conflict settlement. This is supported by the aforementioned assertions. For the resolution of small cases, various ADR centres have been established in the US. China is also moving quickly in this race and has put a lot of emphasis on various ADR processes like arbitration and mediation.  It is made feasible to deliver justice through local community courts, which lessens the pressure on the courts. The State and community, where both share a similar purpose and profit, actively participate in making this possible. As a result, the poor and vulnerable receive justice at their doorsteps. Women are actively involved in ADR seminars, legislation, arbitration, and mediation in several nations. For better justice, numerous national and international organizations have invested in institutionalizing the ADR mechanism and putting it into practice at the state level.

Alternative Dispute Resolution (ADR) and its Impact on Rule of Law (ROL)

The phrase "rule of law" has been discussed by numerous legal experts and researchers according to their expertise and understanding over the years, but no definition that is universally accepted has yet been developed. ROL is a fundamentally contested notion, as Peerenboom (2004, p. 1) argued in his article and received approval for. The majority of scholars concur that the most minimal ROL story is one in which both people and government actors have a responsibility to uphold the law. This formalist viewpoint holds that the law is predetermined, universal, clear, constant, and applied uniformly to everyone. This idea will promote a person's autonomy and dignity without requiring that the statute itself have substantive provisions protecting any particular individual rights. In other words, the formalist definition is consistent with procedural justice neutrality principles in that it calls for decisions to be made impartially, and consistently, by applying the law, and taking the facts into account. It also does not have any needed substantive content. Additionally, because it supports the promotion of dignity and respect for citizens throughout the process, this definition connects with the procedural justice components of treatment with politeness and respect (Hollander & Tyler, 2011, p.8). 

A core concept of conflict systems design is the requirement of varied dispute resolution methods to suit the interests of many stakeholders. Engineers working on governance and ROL projects must better understand and take into account a variety of formal and informal dispute resolution mechanisms, including ADR, in a way that is appropriate to the regional context in order to advance the ROL. Such endeavours have resulted in national systems for transitional justice that includes local and international courts, options for traditional justice, and other kinds of truth and reconciliation commissions. In addition to having national courts, international courts, and an updated version of the previous legal structure, Rwanda features one of the more complicated multi-tiered systems. These procedures gave communities the opportunity to deal with low-level offenders and provided the option of a reconciliation procedure. They were created to draw attention in various ways to crimes of varying severity. This multi-level structure, with "its seeming untidy overlap" of activities, according to Schneider, "may ironically be the success story of handling the peace and justice tensions" (Smith, 2011, p.3- 4).

In the world of ROL, the proverb "he with the hammer, thinks everything is a nail" is particularly accurate. Practitioners frequently assume that all social issues are ROL/legal issues, together with any accompanying problems and remedies. Both the issue and its resolution might not have legal roots. Even the most difficult ROL project is dependent on "extra-legal" components to be successful. It is crucial for the ROL community to look beyond merely particular legal challenges when doing a contextual, problem-analysis. Consideration must be given to the human aspects of ROL problems (O'Connor, 2015). Page 14 of 'A Guide to Change and Change Management for Rule of Law Practitioners'. The ROL has received support from regions other than the West. It has received the approval of government officials from a range of countries, cultures, and economic and political systems (Tamanaha, 2017, p.2).  

The relationship between ADR and the ROL is seen considerably differently when measures to change international law are taken into consideration. On a global scale, the ROL has evolved from a hypothetical concept into a number of significant relief programmes. The World Bank has funded 330 ROL projects totalling $2.9 billion since 1990. Traditional ROL initiatives include building courthouses, training judges, disseminating information about court decisions, and organizing and computerizing court records. To modernize their legal systems and promote greater respect for the ROL, however, foreign countries were urged to embrace ADR beginning in the middle of the 1990s. Recent international ADR programmes frequently involve initiatives to teach mediators and arbitrators, amend laws to encourage mediation and arbitration, educate courts about the advantages of ADR, and give technical assistance and training materials (Sternlight, 2006, p.572). Due to concerns expressed over ADR processes, i.e., whether they appropriately protect individuals' rights and comport with ROL principles the supporters of the ADR are of the view that this informal device has incredible potential to fulfil the procedural justice needs of the aggrieved and can be found in all its modes i.e. arbitration, mediation, conciliation, and negotiation. Because it seems more procedurally fair to them than the courts, the disputants desire to use ADR. After independent evaluations of the fairness of individuals, the processes at least comply with the ROL's objectives. The procedural justice parties' encounters in these processes may be a crucial component in making these processes legitimate. Participants will perceive each ADR procedure as more legitimate and deserving of respect when aspects are designed to achieve the greatest possible procedural fairness for them; once again, this legitimacy may help to maintain the ADR processes' alignment with the ROL's objectives (Hollander & Tyler, 2011, p.13).

The United Nations introduced "effective and accessible processes" for conflict settlement, "including traditional dispute resolution mechanisms ADR in their framework," due to its broadened scope and favourable effects on ROL and access to justice. The inclusion of ADR in ROL programming is justified on the grounds that it will improve the poor and vulnerable community's access to justice, cut down on the expenses and time required to settle disputes, and boost participants' satisfaction with the process. Moreover, probably the most frequently cited justification for incorporating ADR within ROL support programming is to reduce case backlogs. Efficiency "underpins all critical features," according to the ROL, according to the United States Agency for International Development (USAID). ADR programmes frequently receive credit for reducing court backlogs (Alkon, 2011, p.176).

The ROL's most important tenet, "the norms of natural justice must be maintained," is in line with ADR thought and really supports the notion of procedural fairness. The proper application of the law and its consequent capacity to direct action depend plainly on the lack of bias, an open and fair hearing process, and other factors. In an intriguing approach, mediation here promises to address this ROL concept by combating the formal adjudicatory process's inability to deliver such natural justice. ADR procedures will be seen as legitimate because they uphold ideals like "consent, participation, empowerment, dignity, respect, empathy, equity, access, and justice".  According to Menkel-Meadow, a variety of features of ADR processes contribute to the perception of legitimacy, fairness, and satisfaction. ADR enables the discovery of peoples' "actual needs and interests," enabling a resolution that satisfies their needs and interests rather than just positions (wants). Instead of enforcing winner-take-all decisions, it allows compromise, including among non-monetary values that recognize ethical strong points and weaknesses as well as ethical ambiguity. Unlike typical litigation, it is better able to take into account the unique aspects of a case and incorporate sources of principle that are not covered by the law. Similar to this, theorists assert that deliberation is especially prepared to offer democratic legitimacy since it entails wide-ranging and educated public participation, consent, and exercise of public reason. Such a procedure ought to be seen as just and rewarding (Hedeen, Moses & Peter, 2011, p.9). To conclude the argument, it is evident in light of the above contentions that there is a strong correlation between ADR and ROL in terms of modus operandi, provision of justice, public trust, and fair and impartial justice mechanism. Historically, the engineers of the ROL were mainly restricted to the formal legal justice system and political and democratic values at national and international forums. There are numerous projects undergone by the United Nations, USAID, World bank, and many more for the betterment of ROL worldwide. The centre of the debate of all the projects was democracy, political stability, training the judges, investing in the infrastructure of the courtrooms, providing legal awareness, and so on and so forth. ADR has been incorporated in the ROL projects because it has brought a positive contribution and assured good impact on the ROL in terms of the justice system, and procedural flexibility and played an extraordinary role as a supplementary to the juridical system. Research has shown that procedural technicality, the backlog of cases, corruption, and many other legal barriers have badly affected the formal legal justice system for which the ROL projects worked a lot. ADR has seen tremendous success in achieving this objective to a large extent and has lessened the burden of the courts in many parts of the world.  

Conclusion

The alternative dispute resolution (ADR) process has been around for a century. It is alleged to exist everywhere in the world. The rationale is that it has a flexible method that enables the disputing parties to settle their differences amicably while maintaining their relationship going forward. If this method is adopted with support from the government and genuine participation from the community and society at large, it will be more beneficial and have many advantages. Adopting this ADR as a parallel mechanism will assist the judiciary to deliver simple, affordable justice to the wronged at their doorsteps and directly affect the rule of law in both developed and undeveloped jurisdictions. The various modalities used in ADR include negotiation, conciliation, mediation, and arbitration. The parties can use these methods to amicably settle their problems without the involvement of the court. The harmed party has access to all of these channels for speedy, immediate justice, which also has a significant impact on the rule of law. In some states, female mediators offer their services, and training sessions are held to prepare the mediator and arbitrator to offer their opinions. ADR has demonstrated a beneficial impact on the rule of law and has been a focus of the World Bank and US aid to global development. ADR has been institutionalized and integrated into the legal system in the US. Many organizations, including the World Bank, the IMF, and states like the United Kingdom and the United States, have taken into consideration the traditional ADR system because it is the only solution for all problems and can assist developing nations like Pakistan and Afghanistan in ensuring the rule of law and the justice system are in accordance with the ADR system.

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