The full form of ADR is alternative dispute resolution. Settle the dispute beyond the formal process of litigation is called ADR. Plaintiff files the case in the court to acquire justice. But the formal litigation process of the Court is so expensive, time consuming and lengthy. Furthermore, execution of decision process is very difficult. Therefore, most of the people didn’t want to file the case in the Court and eventually access to justice will be far for vulnerable people. They will be compelled to tolerate injustice and slogan of zero tolerance will be limited within the slogan.

Litigation in court become so costly, more time consuming, complex and long procedure, more adversarial and it has gradually undermined the people’s faith. The Courts were not in position to bear the entire burden of modern demands of people in settling the disputes giving appropriate justice and justice should be resolved by ADR procedure which provides procedural flexibility, saving of valuable time and money and appropriate justice.

“Justice delayed is justice denied” this expression is true and for resolving this problem ADR mechanism is needed. The ultimate goal of ADR system is to provide proper justice. A dispute is a problem to be solved together rather than a combat to be won which possible by ADR system.

ADR programs cannot be a substitute for a formal judicial system. ADR programs are instruments for application of equity, rather than the rule of law and as such cannot be expected to establish legal precedent or implement changes in legal and social norms. But it does not to minimize the role of court specially the superior court, play in the promotion of role of law.

ADR system can increase access to justice for social groups that are not adequately of fairly served by judicial system. ADR may be called: Social legal process, distinct from judicial process, informal procedure in the consent of parties, non-litigation procedure of dispute resolution, non-adversarial process, and collective name of the entire dispute settling method outside the Courtroom.

The primary objective of ADR movement is avoidance of vexation (irritation), expense and delay. It promotes the idea of access to justice for all. It provides cheap, simple, quick and accessible justice. The aim of ADR is to encourage parties in conflict to arrive of compromise solution with the assistance of a neutral person.

It is felt that ADR process is an essential element of social peace, social solidarity and harmony. It is participatory justice which depends on parties’ satisfaction. The freedom of the parties to litigation is not affected by ADR proceedings.

ADR can be used with or without lawyer. ADR procedures help in reduction of the workload of the court and thereby help them to focus on the cases which ought to be decided by court.

ADR permit to choose neutrals who are specialist in the subject matters of dispute. ADR process is consensual, private and flexible. It helps to settle the dispute in short period. It helps to make win-win situation both dispute parties. It helps to reduce cost of litigation.

It is able to improve access to justice for all sectors. It enhances Parties satisfaction. The decision made by ADR will be implemented immediately. It will maintain secrecy.

Limitation of ADR

ADR is not applied in all kinds of dispute. There are some limitations. so J. Efforn has said that ” ADR is a limited activity for limited purpose in a limited time and with limited resource”. Some limitations are as follows:

• The issue of public policy is not the subject matter of ADR.
• The constitutional question or issue is not the subject matter of ADR.
• Generally, criminal cases cannot be a subject matter of ADR.
• The process of ADR is not adopted for any special dispute, for solution of which the special court is constituted.
• The dispute which has to interpret legal question is not the subject matter of ADR.

Techniques of ADR

ADR techniques can be used where appropriate and what form is appropriate depends upon the facts and circumstances of each case.

Techniques of ADR are as follows:

Arbitration

Arbitration is a method of dispute resolution involving one or more neutral third parties who are usually agreed to by the disputing and whose decision is binding. An arbitrator or umpire is a natural person who decides the dispute fairly and neutrally and his/her decision is known as an award.

Negotiation

A non-binding procedure in which discussions between the parties are initiated without the intervention of any third party with object or arriving settlement of the dispute. Mediation is negotiation carried out with the assistance of a third party neutral. The mediator, in contrast to the arbitrator or judge, has no power to impose an outcome on disputing parties.

Mediation

Mediation is a process of resolving disputes with the aid of a neutral person who help parties to identify issues and develop proposals to resolve their disputes. Unlike arbitration, the mediator is not empowered to decide disputes. It is a process where the parties to a pending case are directed by the court to submit their disputes to a neutral third party (the mediator), who works with them to reach a settlement of their controversy. The mediator acts as a facilitator for the parties to arrive at a mutually acceptable arrangement, which will be the basis for the court to render a judgment based on a compromise. The mediation includes terms conciliation.

Nepal has been following court referred mediation. Mediation Act, 2068 B.S. has come into force to address mediation. Rule No. 32 (a) to 32 (j) of District Court Regulation 2052 B.S., Rule No. 53(a) to 53 (K) of Appellate Court Regulation 2048 B.S and Rule No. 65(a) to 65(k) of Supreme Court Regulation 2049 B.S. are related to mediation.

Conciliation

Conciliation is non-binding Arbitration. The Conciliator may indicate the strong and weak point of disputed cases and the consequence of failure to settle but s/he will not generally make a recommendation for settlement, unlike mediator will formulate his/her own recommendation on settle terms of specific dispute which led to mediation. Mediator is more neutral than conciliator. At the end of case mediator only can provide advice for both parties but conciliator can provide some pressure to settle the dispute.

Med-Arb

A procedure which combines sequentially conciliation/mediation and where the dispute is not settled through conciliation/mediation within a period of time agreed in advance by the parties and then arbitration. It is the combination of mediation and arbitration.

Mini-trail

A non-binding procedure in which disputing parties are presented with summaries of their cases to enable them to assess the strengths, weakness and prospects of their case and then an opportunity to negotiate a settlement with the assistance of a neutral adviser.

Fact-finding

It is related with ” labour management dispute”. The fact-finding Board has power to present report after research works. Without the presentation of report by Fact-Finding Board, nobody can lock-out and Strike. After heavy research, the Board will flash-out the decision. The parties have right to accept that decision or not as well.

Adjudication

Adjudication includes litigation and arbitration also in some jurisdiction of private judging. Adjudication is a legal process of resolving the disputes. On other words, it is a formal process of giving or pronouncing a judgment or decree judicial processing. This alternative use to settle the dispute immediately, which is related with construction plan (big project). First of all, an impartial person appointed in contractual period. The parties should present the main point of disputes, remedies and evidences before the Adjudicator.  After evaluation of evidences within particular period (generally 28 days). Adjudicator has power to give the decision in question of a fact and question of law as well. Without appeal, generally it is binding nature.

Community Mediation

It is produced by decentralization concept. Any kinds of the disputes, the community settles to use conciliation, mediation in mutual understanding within the society i.e. Mukhiya, Guthi, Jamindar, Gyalbo, Thakali. Now, Nyaya committee of Jyapu Samaj is being popular for community mediation in Kathmandu Valley.

ADR in Nepal

ADR is not a new phenomenon, though it has been organized on more scientific lines expressed in more clear terms and employed more widely in dispute resolution in recent years than before. Long before there were Panchayat, panchali, Mukihiya, Guthi Naike were established in informal way to settle the dispute in gross-roots level.

ADR can be traced back to the system of Panchayat in Nepal. Panchayat was an informal tribunal of five gentlemen chosen from among the villagers to render an impartial decision in the settlement of disputes between the members of Villagers. In the lichhavi period the panchali which was also known as panch- sabha was empowered to decide disputes at the local level.

The practice of mediation/arbitration in Nepal has long history behind it. These two methods of dispute resolution were practiced in ancient Nepal which are still continuing but in an advanced form. Muluki Ain 2020, Development Board Act, 2013 B.S., Local self – governance Act 2055 B.S., Nepal petroleum Act, 2040 B.S., Foreign Investment and Technology Transfer Act 2049 B.S. Labour Act 2048 B.S., Contract Act 2056 B.S., Banks and Financial Institutions Act, 2063 B.S. are also come into force to address ADR.