Violence against women is a matter of grave concern. The immediate and long-term physical, sexual, and mental consequences for them can prove to be absolutely devastating. Arbitrary killings, torture, and sexual violence against women have been on the rise and people all over the world are trying to find ways to redress these issues, which has accordingly resulted in the interest around the scope of Alternate Dispute Resolution in helping resolve them.

A 2018 analysis of prevalence data from 2000-2018 across 161 countries and areas, conducted by WHO on behalf of the UN Interagency working group on violence against women, found that worldwide, nearly 1 in 3, or 30%, of women have been subjected to physical and/or sexual violence by an intimate partner or non-partner sexual violence or both¹.

Such staggering figures indicate the need to address this problem immediately. Moreover, lockdowns during the COVID-19 pandemic and its social and economic impacts have further increased the exposure of women to abusive partners and known risk factors, while limiting their access to services. Situations of humanitarian crises and displacement may exacerbate existing violence, such as by intimate partners, as well as non-partner sexual violence, and may also lead to new forms of violence against women².

Now the first question that might arise in your mind is:

Alternative Dispute Resolution (ADR) refers to any means of settling disputes outside the courtroom. Various kinds of processes and techniques are applied here to resolve a dispute without going on the road of litigation. ADR, in recent years, has become an alternative to litigation.

The basic difference between arbitration and litigation is that the court is involved in the case of litigation whereas in arbitration, a settlement between the parties is reached outside the court. Though litigation has been the primary method of obtain justice in India, people have started switching to ADR due to various reasons such as its flexibility, offered privacy, lower cost and speedy nature.

Bringing forth the voice of battered women who have faced difficult circumstances is the need of the hour and ADR, with its streamlined mechanism and effective negotiation practices has the resources to provide for it. The system of Alternative Dispute Resolution came into existence due to the failure of the traditional court system to resolve disputes effectively and efficiently. The total number of pending cases in India as of Feb. 1, 2020, was 3.65 crore, which clearly showcases that the courts are already over-burdened with a huge backlog of cases and there is a need for an alternative platform to settle disputes arising in the future.

There are multiple reasons for women to choose ADR over litigation process to resolve their problems successfully. Some of them are highlighted as follows:

1. Confidentiality: Arbitration is strictly private and confidential. The proceedings of a case in an arbitration setting are not subject to public records and are generally held in privacy away from public scrutiny. The confidentiality within the process makes it easier for women to speak about private matters, especially in sexual harassment cases.

   
   

   Although Section 228A of the Indian Penal Code clearly states that rape victims or survivors of other sexual offences prescribed by law cannot be identified without explicit permission, the legal prohibition continues to be violated and the privacy of the victim is breached.

   
   The victim and her identity need to be protected and to make this possible, we need a more informal process which is confidential and does not involve public opinions and interferences.



2. Cost factor: The cost and expenses incurred in an arbitration process are not much as compared to the process of litigation. The primary reason for lower cost of ADR is that most proceedings take lesser time than a lawsuit in a court, which results in it being quite inexpensive for people.

   
   In the present time, though the gender pay gap has dropped substantially, many women still face hurdles in accessing finances and legal advice unlike men. Lack of resources can have a negative impact on a lawsuit filed in the court of law. ADR is a way to overcome these difficulties faced by women and give them a fair chance to claim and fight for their rights.



3. Speedy/Quick judgement: The pace at which litigation and ADR proceed varies greatly. Disputes which are taken to arbitration can be resolved faster than a lawsuit in court. Compared to lawsuits filed in courts which can sometimes take years to get decided, ADR methods entail short timelines which is extremely helpful to the parties involved especially women, who are fighting against harassment or sexual violence.

   
   Sensitive cases need to be dealt with as soon as possible so that the offender does not get the opportunity to intimidate the victim or her family. Many times, in long running cases of rape or sexual abuse, the accused easily influences witnesses and silences them which results in his acquittal. ADR mechanism provides specific fast-track methods, such as expedited arbitration, which can be availed by the victim to seek justice.



4. Expert opinion: Specialization of the decision-makers in the two methods is a key factor to be considered. Judges in a court case will often know very little about certain types of cases whereas arbitrators are typically people with experience in the industry pertaining to the specific arbitration disputes and, therefore, may provide a greater level of expertise in comparison to a judge.

   
   

   In the arbitration process, the parties have the authority to select their arbitrator themselves which enhances their trust and satisfaction towards the complete process and helps in achieving high-quality outcomes while limiting the time and cost of the proceedings as compared to court proceedings. An expert will not have a prejudiced opinion on the subject which will ensure a fair trial for the women involved disputes. Improving access to justice for women is one step towards creating full and true equality for women.

   
   

Exploitation of women is a sad reality even in the 21st century. Rape, sex trafficking, forced marriage, slavery, and gender-based violence against women are still prevalent. According to the 2019 annual report of the National Crime Records Bureau (NCRB), 32,033 rape cases were registered across India³. One rape was reported every 16 minutes in India and the conviction rate recorded that year was 27.8%.

Even though Indian law provides for rape cases to be completed within a year through fast-track courts, they have not been of any help. The probable cause for this could be that Fast Tracks Courts are no different from the usual courts and they follow the same processes and procedures. Fast-track courts, even though dedicated to a particular category of cases have delivered worse outcomes than ordinary courts in India.

In view of these facts, it is not surprising at all to look at how far short these courts have fallen of their assigned duty. Considering all the failed attempts to save women from the injustice faced by them, we need to look for a better alternative in the form of Alternate Dispute Resolution. ADR is a recent but increasingly prevalent phenomenon that has significantly evolved due to the failure of the conventional process of litigation to provide timely resolution of disputes.

We need to provide ADR with a fair chance to effectively settle various disputes. We must also try and construct such dispute resolution mechanisms that are fair in process as well as in outcome and those that meet the legal needs of the disputants.

Alternate Dispute Resolution is not devoid of flaws in its system. There’s always a possibility of power imbalance between the two parties. Our society is of the opinion that women are far inferior in all aspects of life as compared to men. They are consistently treated as less worthy of belief than men, specifically because they are women.

This refusal to listen to women seriously is very often unintended and seems so natural that it has become hard to even identify it now. ADR is more prone to the influence of patriarchal cultural assumptions. This in turn affects mediators and counsellors which further leads to the marginalization of the aggrieved woman and her concerns. The outcome of any dispute should not be based upon the gendered inequalities of power.

Exploitation of women and their vulnerabilities will damage people’s belief in the system. The real long-term goal of ADR must be to attack the sources of a woman’s exploitation directly. Limiting violence against women and protecting them from physical, sexual, and mental assault should be their primary responsibility. It is already a challenge for survivors to obtain justice in the Indian legal system and we, as a community need to transform the existing ADR mechanism to a more robust and secure platform to save our women from injustice.

1. Violence against women Prevalence Estimates, 2018. Global, regional, and national prevalence estimates for intimate partner violence against women and global and regional prevalence estimates for non-partner sexual violence against women.

2. Violence against women. (2021, March 9). World Health Organization,

https://www.who.int/news-room/fact-sheets/detail/violence-against-women

3. Ministry of Home Affairs. (2020, September). Crime in India,

https://ncrb.gov.in/sites/default/files/CII%202019%20Volume%201.pdf