The global population is rising every second and so are the number of
people knocking the doors of courts of law. The pendency of suits cannot be
dealt unless the common law system is reformed.
Alternate dispute resolution (ADR) is seen as the mechanism which can help to
reduce the burden on the conventional adversarial mode of dispute solving. Any
method in which dispute is resolved outside the court is considered as Alternate
Dispute Resolution system. ADR is an umbrella term which includes all legally
permitted processes of dispute resolution other than litigation.Alternate
dispute resolution is not a new concept for India, It has witnessed it in the
form of panchayats and family gatherings since time immemorial. Legal history
indicates that down the ages man has been experimenting with procedure for
making it easy, cheap, unfailing and convenient to obtain justice .
four forms of ADR techniques namely, Arbitration, Negotiation Mediation and
Mediation in its plain and simple meaning is nothing but facilitated
negotiation. However, comprehensively, mediation may be defined as a
voluntary process of dispute resolution where a neutral third party (the
mediator) with the use of effective and specialized communication and
negotiation techniquesaids the parties in arriving at an amicable
settlement. It has been derived from the Latin word mediare
which means to
be in the middle
. Therefore it can be said that it is a process which is
aimed at searching the middle path between the disputes among the parties so
that a mutually agreeable settlement may be worked out. It is a non-adversarial
dispute settlement approach and a well-known ADR mechanism.
At the point when we talk about its international presence the first thing that
comes to our mind is The United Nations Convention on International Settlement
Agreements resulting from Mediation, also known as the Singapore Convention
) certified in 2018, applies to
international settlement agreements resulting from mediation (settlement agreement
Convention establishes a legitimate system for the right to invoke settlement
agreements as well as for their enforcement.
It acts as an instrument which promotes mediation and thus facilitates
international trade and commerce. The Convention is open for signature by States
and regional economic integration organizations (referred to as Parties
In India, mediation is legitimised
by Section 89 of the Civil Procedure Code, 1908 which states that the court
can refer the parties to mediation or arbitration if there exist elements of a
settlement which should be acceptable to the parties involved. Industrial
Disputes Act, 1947 is the first legislation which gives legal recognition to the
mediation. Section 4 of this Act talks about appointment of an independent
and impartial mediator for the process of mediation.
In the case of Salem
Advocate Bar Association, Tamil Nadu v. Union of India
 Supreme Court held in
reference to the matter of mediation that conciliation and arbitration are
mandatory for Court matters. This judgement has granted legal and social
recognition to mediation as a method of dispute resolution.
The purpose of ADR is primarily to reduce the pile of cases in Courts. It has
become a challenge for the courts to deal with such arrears of cases. There are
a lot of issues with our civil justice system these are delays, costs, rigidity
of procedure and reduction of participatory role of parties. As we are already
aware of the role of mediation as time saving and cost cutting measure let us
understand the role of mediation in reducing procedural rigidity and
facilitating participatory roles of parties in dispute resolution.
conventional justice system lays great emphasis on inflexible rules and
procedure so that all the litigants get justice in accordance to the same
procedural formulation. But with changing times the procedural law has become
very complicated that it sometimes leads to miscarriage of justice due to
technical lacuna in the case.
On the other hand mediation law does not insist
upon principles of evidence act and rigid procedures and of code in the
settlement of disputes. A mediator acts in a flexible manner and can listen to
the parties separately when he considers it vital. In adversarial system of
dispute resolution the parties to the dispute have a very limited role to play
in the judicial procedures. In this system the advocates have a considerable
role to play and the parties present their submissions through their legal
However in Mediation the parties themselves are involved in the
dispute solving process, they convey their problems to the mediator which then
deals with them efficiently due to his expertise and experience. Mediation table
provides the parties to express their emotions, interests, perceptions and
opinions which are often not allowed in the conventional court system. Hence,
mediation has potential to solve an array of problems such as delay and expense,
rigidity in procedure and provides participatory role to the parties and hence
has potential to provide solutions which are beyond the conventional legal
Advantages of mediation.
Perks of the mediation process can be discussed under the following points:
- Financially effective and quicker resolution:
Mediation offers an ADR
mechanism for cost effective and expeditious resolution of disputes. The
costs incurred in the mediation process is nominal in comparison to arbitration
or judicial procedures. The parties are saved from the cost fee and the legal
counsel's fee. There are no legal traps or procedural loopholes and obligations.
The dispute resolution process is faster due to minimal legal formalities and
flexibility of procedures. When the mediation process reaches the settlement the
dispute stands as resolved finally. Thus the hassles and expenditures of appeals
- Secrecy and confidentiality:
This is the major advantage of this form of alternate dispute resolution
process that there is utmost confidentiality between the mediator and the
parties involved and the outside parties do not have access to the mediation
proceedings. There is confidentiality even between one party and mediator
i.e. if one party provides any information to the mediator; it is to be kept
confidential even from the other party subject to a specific condition.
Mediation is confidential whether or not it results in the settlement and
resolution of the dispute.Even when it is unsuccessful one cannot
disclose what has been transpired in the proceedings. This is despite the
fact that confidentiality in mediation has no statutory backing because
inherently the process is considered confidential. The courts have also
emphasized upon the aspect of confidentiality in mediation proceedings.
- A Win-Win situation:
Mediation is essentially non adversarial in nature and fundamentally
parties are not opponents in mediation, but are collaborators striving
towards a mutually acceptable resolution which results in a win-win
situation as the final outcome is arrived at with the consent of both
the parties and leaves both the parties satisfied. One of the major
advantages of mediation is that here neither of the parties lose and the
decision comes from the mutual agreement of both and interests of both the
parties are conserved .Even where mediation does not result in a final
settlement, and the dispute remains in trial, the joint communication
established and the clarification of the nature of the dispute, if not an
actual narrowing of the conflict, makes the trial proceed much more
- Conservation of Relationships:
In mediation the parties alone are responsible for their own decisions
which come forth through the absence of formality of court procedures and
through open discussion of issues and free interchange of ideas resulting
into a greater likelihood of a lasting resolution. This ADR mechanism encourages the parties to participate in the
process without any legal barriers or involvement of law experts, communicate
their problems and work together with the side opposite to reach a mutually
agreeable settlement .It provides an atmosphere where disputes are resolved in
cool, composed and amiable atmosphere. Hence, focuses on long-term interests and
bonding, fosters amity and friendship. As neither of the sides lose and as
there is no disagreement between them, relations between the parties are
- Innovative and unconventional solutions:
It permits the sides to formulate customized and tailor- made solutions for
their disputes with regards to the needs and interests of the parties which
they could not have if they would have opted for litigation or arbitration.
In this process parties themselves resolves the disputes among themselves
and are free to formulate a suitable solution by themselves as per their
requirement. The hallmark of mediation is therefore its capacity to help the
parties expand traditional settlement discussions and broaden resolution
options, often by going beyond the legal issues in controversy. Hence,
the mediation process provides novel broad-based solutions rather than
straightforward legal adjudication.
In conclusion it can be said that Mediation in India and all over is still in
its premature stage. India still does not have a dedicated law enacted for
Mediation and it is the need of the hour to do so. It has to be kept in mind
that mediation is not meant to compete with the conventional court system but it
has the job to reduce its burden and take up only the matters which can be
settled outside the court. It has certain benefits which provides it an edge
over litigation and Arbitration they are reduced costs, no further appeals and
simple procedures etc. Alternate Dispute Resolution has a lot of scope and if
exploited well, it can reduce the burden on the judiciary and promote
international trade and commerce.
- Bryan A. Garner ,Black's Law Dictionary (9th edn.).
- Dr. Shraddhakara Supakar, Law of Procedure and Justice in Ancient India,
Deep & Deep Publication, New Delhi, 1986.
- See Tom Arnold, Mediation Outline: A Practical How-to Guide for
Mediators and Attorneys in P.C. Rao and William Sheffield (Eds.), Alternative Dispute
Resolution 210(Universal Law Publishing Company Pvt ltd., Delhi, 1997);See also
Stephen B Goldberg, Frank E.A. Sander, Nancy H. Rogers & S.R. Cole, Dispute
Negotiation, Mediation and other Processes (Aspen Law & Business, New York, 3rd
- Neutrality of the mediator is considered a necessary condition not only
for conducting proper mediation but also for the very existence of the
process called mediation. See Ronit Zamir, The Disempowering Relationship between
Mediator Neutrality and Judicial Impartiality: Toward a New Mediation Ethic, 11 Pepperdine Disp. Res. L. J. 467(2011); Non-neutral mediator, therefore, is an
oxymoron. See Christine E. Harrington & Sally Engle Merry, Ideological
Production: The Making of Community Mediation, 22 Law and Socy Rev. 709
- See Joanne Goss, An Introduction to Alternative Dispute Resolution, 34
(1) Alta. L. Rev. 1 (1995) (Can.).
- Black's Law Dictionary defines Mediation as a method of non-binding
dispute resolution involving a neutral third party who tries to help the
disputing parties to reach a mutually agreeable solution. See Bryan A.
Garner (Ed.), Black's Law Dictionary 1003 (West Publishing Company, St.
Paul, Minnesota, 8th Edn., 2004); Mediation is therefore a facilitative process in which disputing
parties engage the assistance of an impartial third party, the mediator, who
helps them to try to arrive at an agreed resolution of their dispute. See Henry
J. Brown and Arthur L. Mariot, ADR Principles and Practice (Sweet & Maxwell,
London, 2nd Edn., 1997).
- See Law Reform Commission, Ireland, Report on Alternative Dispute
Resolution: Mediation and Conciliation,
LRC 98-2010, November 2010, available at: http://www.lawreform.ie (last visited
- Available at https://uncitral.un.org/en/texts/mediation/conventions/international_settlement_agreements
(last accessed 6th Dec, 2019).
- Civil Procedure Code, 1908,-89
- Industrial Disputes Act,1947,-4
- Writ petition 496 of 2002.
- In fact, the driving force for participants in mediation is achievement
of a fair result as quickly and inexpensively as possible. See James Melamed, A
View of Mediation in the Future, 1(8) the Indian Arbitrator 6 (September2009).
- Ashwanie Kumar Bansal, Arbitration and ADR 19 (Universal Law Publishing Co.
Pvt. Ltd., Delhi, 2005
- There is no statutory provision like s. 75, Arbitration and Conciliation
Act, 1996 which affords confidentiality in mediation as a statutory
- In Moti Ram v. Ashok Kumar, (2011) 1 SCC 466, a case of Court referred
mediation, the Supreme Court observed ...if the mediation is unsuccessful, then
the mediator should only write one sentence in his report and send it to the
Court stating that the 'Mediation has been unsuccessful'. Beyond that, the
mediator should not write anything which was discussed, proposed or done during
the mediation proceedings. This is because in mediation, very often, offers,
counter offers and proposals are made by the parties but until and unless the
parties reach to an agreement signed by them, it will not amount to any
concluded contract. If the happenings in the mediation proceedings are
disclosed, it will destroy the confidentiality of the mediation process.....
- William Sheffield, Disputes among Business Partners should be Mediated
or Arbitrated, not Litigated, in P.C. Rao and William Sheffield (Eds.),
Alternative Dispute Resolution 288 (Universal Law Publishing Company Pvt. Ltd.,
- In fact party-acceptability of outcomes is, and should be, the defining
feature of justice in mediation and in this context the process of mediation
serves as an instrument for securing justice. See Joseph B. Stulberg, Mediation
and Justice: What standards Govern? 6 Cardozo J. Conflict Resol. 213 (2005);
Mediation presents the opportunity to express differences and improve
relationships and mutual understanding, whether or not an agreement is reached.
See Anil Xavier, Mediation is here to Stay, 2 (3) The Indian Arbitrator 2
- Kuljit Kaur, Mediation: As a Technique for Alternative Dispute Resolution
System, Nyaya Kiran 19 (D.L.S.A., April-June, 2008)
- The Delhi Mediation Centre, Annual Report (2006-2007)
- R.V. Raveendran, Mediation - Its Importance and Relevance, (2010) PL
- Elizabeth Plapinger & Donna Stienstra, ADR and Settlement in the Federal
District Courts: A Sourcebook for Judges and Lawyers available at:
http://www.fjc.gov (last visited on 01.04.2012).
Written By: Hrishikesh Jaiswal