ABC of Alternative Dispute Resolution in India
Society since its inception has faced a lot of disputes and conflicts and
settlement of these problems have become an essential part of it, Court
settlement though is well accepted but has suffered a lot of disadvantages due
to its cumbersome codes and rigid procedures. The Alternate Dispute Resolution
system in recent times is seen as the better way to settle disputes by
overcoming drawbacks of the conventional court system. ADR includes Mediation,
Conciliation and Arbitration out of which the first one has received special
consideration due to its cost effectiveness, time saving and flexible approach.
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.[2] 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.[3] There are
four forms of ADR techniques namely, Arbitration, Negotiation Mediation and
Conciliation.
Mediation in its plain and simple meaning is nothing but facilitated
negotiation.[4] However, comprehensively, mediation may be defined as a
voluntary process of dispute resolution where a neutral[5] third party (the
mediator) with the use of effective and specialized communication and
negotiation techniques[6]aids the parties in arriving at an amicable
settlement.[7] It has beenderived from the Latin word 'mediare' which means 'to
be in the middle.'[8] 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 on
Mediation (the Convention) certified in 2018, applies to international
settlement agreements resulting from mediation (settlement agreement). The
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").[9] In India, mediation is legitimised
by Section 89 of the Civil Procedure Code, 1908[10] 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 41[11] 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 India1[12] 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. The 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 counsels.
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 remedies.
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.[13] 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
are avoided.
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 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.[14]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[15] because inherently the process is considered confidential.
The courts have also emphasized upon the aspect of confidentiality in mediation
proceedings.[16]
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[17] as the final outcome is arrived at with the consent of both the
parties and leaves both the parties satisfied.[18] 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 efficiently.[19]
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.[20] 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.[21] As neither of the sides lose and as there is no disagreement
between them, relations between the parties are preserved.
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.[22] Hence, the mediation process provides novel broad-based
solutions rather than straightforward legal adjudication.[23]
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.
Alternate Dispute Resolution in Rural India: A Brief study about Panchayat system
Abstract:
Every civilization has developed its unique mechanism of dispute resolution.
India since ancient times has witnessed the informal settlement of local
disputes. The concept of Panchayat justice is age-old. Since primitive times
panchayat system has played a major role in dispute resolution at the village
level. The Panchayat model was based on resolving disputes on the basis of
cultures, customs, religious beliefs and habits. The individual adjudicators
were known for their partiality and sense of justice. This informal model of
village dispute resolution developed into the formal local governance system.
Alternate Dispute Resolution has started to share the burden of the formal
judiciary and is facilitating means to face a conflicting situation and to
create harmony in our society and neighborhoods. This paper deals with the
"Panchayat system" as a dispute resolution mechanism in India from the ancient
period to the present.
"All other pleasures and possessions pale into nothingness before service,
which is rendered in a spirit of joy." – Mahatma Gandhi
Humanity since its arrival on the planet has seen conflicts and wars. Settlement
of these conflicts has been an indispensable part of society. One of the ways to
measure the development and successful operation of the society is to check the
effectiveness of their dispute resolution mechanism. In the early part of
history, most of the disputes were resolved through primitive and informal
methods. These informal mechanisms gradually transformed into formal and
organised methods.
The effective resolution of the disputes is considered highly
important for achieving the ends of justice. It is believed that the function of
law and the legal system that is in force for dispute settlement is to balance
conflicting interests in the society.[24] Every society has evolved its own
mechanism for dispute resolution and every method has its unique features. The
societies throughout the world since long have been using indigenous
non-judicial methods for conflict resolution. Most the present societies of the
world practice alternate modes of dispute resolution apart from the traditional
court model.
Alternate Dispute Resolution or ADR is the technique of resolution of conflicts
arising between parties alternate to the formal legal methodology or the
conventional court system established by the State or the Sovereign government
i.e. settlement of dispute outside the court. ADR is an umbrella term which
includes all legally permitted processes of dispute resolution other than
litigation.[25] This is the aggregate term for all the methods used by the
parties to resolve conflicts without bringing the matter into the formal
structure of judiciary in the country.
What is new is the extensive promotion
and proliferation of ADR models, wider use of court-connected ADR, and the
increasing use of ADR as a tool to realize goals broader than the settlement of
specific disputes.[26]Also in India, the concept is prevalent 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.[27] The Judicial settlement of disputes though is the most
popular method of dispute settlement in modern era suffers several drawbacks due
to its formality.[28]The conventional court system has suffered from several
drawbacks these are rigid procedural delays, excessive costs and unnecessary
appeals etc. Due to these drawbacks, the sovereign who administers justice
through judiciary had to think of alternate modes of dispute resolution in a
modern era and ADR emerged as an effective solution.
The Alternate Dispute solution is a collective term for techniques like
Mediation, Conciliation and Arbitration etc. Out of these techniques, Mediation
has got special importance in the current era. It's a method that usually
involves a neutral third party, that is, a skilled helper who either assists the
parties of a dispute to reach at a decision by agreement or facilitates in
arriving at a solution to the problem between the parties to the dispute.[29]
Mediation in its plain and simple meaning is nothing but facilitated
negotiation[30]. However, comprehensively, mediation may be defined as a
voluntary process of dispute resolution where a neutral[31] third party (the
mediator) with the use of effective and specialized communication and
negotiation techniques[32]aids the parties in arriving at an amicable
settlement.[33] It has been derived from the Latin word 'mediare' which means
'to be in the middle.'[34] Mediation is both cost and time-effective. The
current trends all over the world suggest that the process of Mediation is
gaining more and more popularity as a dispute settlement mechanism to the extent
that even the judicial organs are encouraging it.[35]
All the communities and societies have their home-grown method of resolving
disputes of their constituents, it is also observed that the dispute solving
process is varied and refined if the history of the society is long and
prosperous. India has a golden past with certain scars of colonisation, It is a
land of many cultures and hence has several dispute resolution mechanisms had
emerged and been customised over time. Communities in India did not consider law
as a set of rules, but as a moral one or Dharma[36]. In Indian tradition, dharma
is not a body of rules practised for its own sake. Dharma has a definite end and
is a comprehensive concept. When it is used in the sense of obligation, its
purpose is to keep everybody within his assigned role, prescribed by the
dharmasastras[37]. The visible end is to maintain the status quo in the society
and the ultimate end lies in providing to each one in the society an opportunity
to realise his ultimate goal of human existence[38]. Since ancient times the
informal resolution of local disputes has been seen throughout the country, but
we could not see homogeneity in the methods used for doing so. Mediation as a
mode of resolving problems has been very popular in India since time immemorial.
Before the formation of Law Courts, people used to resolve their differences
themselves through mediation. Mediation was used to solve not only personal
problems of both civil and criminal nature but political problems between
different kingdoms also.
The epics like Mahabharata and Ramayana in ancient India, as well as the ancient
texts and formal socio-legal sources governing the conduct of people in ancient
India, bears a very strong testimony of the presence of this technique for
dispute resolution[39] .Gandhi famously said "India lives in its villages"[40],
Bapu always wanted self-rule i.e. people should govern themselves and he had saw
immense potential in the nations villages. He also used to refer the rural India
as the the real India. India is the world's second largest nation, as well as
its largest democracy, and there is evidence that its citizens rely heavily upon
mediation to resolve their disputes[41].The people who used to mediate the
disputes were learned in social, legal, moral and religious principles. These
wise men used to have high regard in the society and they held these positions
for the welfare of the people, they were neutral and impartial which enabled
them to find a solution which was mutually acceptable and beneficial for both
the parties. The justice delivery system in ancient India was not separated from
the executive, which enhanced the importance of these mediators in conflict
management and its resolution. The permanent system for mediation was
established which was referred as 'Panchayat' in the villages of ancient
India.[42]
The dispute resolution system now known as mediation was normally held by a
person of high respect and status among the villagers and such mediation was
commonly known as "Panchayat" in olden days. According to Colebrooke, an English
scholar and commentator on ancient Hindu law, Panchayats were different systems
of arbitration subordinate to the regular courts of law.[43] The town headmen
with the council comprising of other distinguished individuals used to function
as mediators. The individuals were known as "panchas" and were known for their
integrity, quality, character and impartiality, they were headed by the "Sarpanch".
When a dispute was submitted to the panchayat, the members along with the
parties used to discuss and deliberate and arrive on the settlement which was
accepted by both the parties in the dispute and only those disputes where no
settlement could reach upon were alluded to the judicial experts for the final
decision. Disputes in the early past rarely used to reach law courts. The
panchayat used to resolve even complex criminal, civil and personal law matters.
The matters were resolved keeping in mind the local conditions, language,
habits, customs and practices. In words of Martin, C.J., "arbitration was indeed
a striking feature of ordinary Indian life and it prevailed in all ranks of life
to a much greater extent than was the case of England. To refer matters to a
Panch was one of the natural ways of deciding many disputes in India"[44]. The
Panchayat were mainly of two types these were, "Caste panchayat" and "Village
panchayat". The Village panchayat mainly performed regulatory functions and also
used to deal with civil disputes of villagers relating to land and administering
criminal justice. The matters of marriage, rituals and jajmani were dealt by
Caste panchayat. In medieval times the panchayat system had to face the blows
and scars of foreign rule especially the Mughals but still, the people preferred
the indigenous method of dispute settlement over the foreign origin judicial
system.
The major transformation to the Indian legal system came during the British rule
in India. In the medieval times the law was based on religious sources and on
practices and customs. The codified statutory laws were written in the English
language and administered by the British officers. The foreign legal framework
was unknown and difficult for the Indians. The English law was not based on
Indian customs, practices and rituals. The British officers were well versed
with the English law but had a tough time acquainting themselves with the
indigenous legal system and this became a blessing in disguise for the Panchayat
system. The traditional institutions worked as recognized system of
administration of justice and not merely alternatives to the formal justice
system established by the British. The two systems continued to operate parallel
to each other.[45] Gandhi, the champion of the Indian Freedom Struggle, the
great jurist and ardent supporter of non-violence and peace and father of the
Indian Nation had a very strong belief and faith in the Panchayat system as the
dispute settlement mechanism[46]. He believed that majority of the Indians
resided in villages and panchayat was the only way of effective dispute
resolution because the English judicial system was not easily accessible. ADR
was not only an alternate convenient procedure but was considered a politically
safe and significant mechanism of dispute resolution at that time. However, with
the advent of the British Raj these traditional institutions of dispute
resolution somehow started withering and the formal legal system introduced by
the British began to rule[47]. The legislations such as the Indian Penal Code
and Code of Criminal Code took over the panchayats to establish rule of law. The
Panchayat system had a major setback when respected and neutral village elders
were replaced by leaders based on caste, money and political affiliations who
gave decisions based on superstitions, personal interests and moral beliefs. The
punishments imposed by them were of ugly nature such as ex-communication and
honor killing etc. As a result the indigenous dispute resolving mechanism slowly
lost its respect and confidence and the Courts replaced them as the adjudicators
of disputes. Gandhiji accepted the British legal system but believed that the
panchayat system should be developed more and should run parallel to the
adversarial court system.
The Constituent assembly in India discussed heavily upon the issue of panchayats.
Many lawmakers argued that the panchayat model of dispute resolution was
Gandhi's dream and thus it deserved a place in the Constitution of India. It was
for this reason that some provisions in this regard were incorporated in the
Constitution of India and it was made obligatory to some extent for the
government in India to take measures in this regard.[48] Therefore we have
Article 40 of our Constitution which says "The State shall take steps to
organise village Panchayats and endow them with such powers and authority as may
be necessary to enable them to function as units of self-government."[49]
Unfortunately in the early part of the historical backdrop of independent India,
not much attention was paid to the development of the panchayat system as the
main focus of the state was to make the court system more solid and accessible
to the poor Indians. The significance of Judiciary was emphasized to the degree
that it rose as the chief dispute settlement system in India. As every case
filed had to go through rigid codes and procedure of the adversarial court
system, it led to piling of cases in the courts. The English made system of law
had strict procedures for example Code of Civil Procedure, Criminal Code and
Indian Evidence Act which affected the justice delivery in terms of quality and
time. The burdening of judiciary started from the time when the English East
India Company started to shift from the Mughal system of Justice to their
English Court system. This burdening accelerated after independence as more and
more people became educated and empowered. This led the State in search for
alternate modes of dispute settlement thus the importance of panchayat was again
realized by the government. The then government formed the Balwantrai Mehta
Committee in 1957 which recommended a three-tier Panchayati Raj System in the
form of Gram Panchayats, Panchayat Samiti and Zilla Parishad in village, block
and district level respectively. Certain states took spirited measures to
implement the recommendations while others turned a blind eye. The turn of the
21st century saw Globalisation and Privatisation throughout the planet. Due to
improvements in transport and communication, more and more people started doing
business across the borders. The increasing cross border disputes are considered
responsible for international growth and advancement of Mediation and
Arbitration as a conflict resolution mechanism.
As all the countries had their own set of laws it created a problem of conflict
of laws. Mediation at that point provided a solution wherein without reference
to law of any one nation the disputes could be resolved amicably. This inherent
benefit of Mediation led to its international acceptance which resulted into
generation of vast legal jurisprudence on it. Many legal scholars expect India
to be the Mediation hub of the world. The laws governing ADR in India till 1996
were mostly pre-independent and were incompetent to address the emerging
concerns[50]. All those laws were repealed by the law that came into force in
the year 1996 to govern and regulate the process of Arbitration, Conciliation
and Mediation in India. The Arbitration and Conciliation Act, 1996 is the law
that today regulates the process of Mediation in India along with Arbitration
and Conciliation. The Mediation is also governed by the Civil Procedure Code to
some extent.[51] The Mediation as per Supreme Court of India is a
non-adjudicatory process that is aimed at amicable settlement of disputes
between the parties via Mediator.[52] The Supreme Court of India has launched
special training programmes for specialized training of mediators. After
completion of the program, the mediators become highly efficient in handling the
mediation sessions. The organisations such as Indian Institution of Mediation
and Delhi Mediation Centre have proved very benevolent in promoting mediation in
India. Legal Services Authorities are statutory bodies constituted in the states
of India by the Legal Services Authorities Act 1987, as enshrined by article
39-A of the Constitution of India, for providing free legal services for the
citizens[53] [54]. If the person is incapable of bearing the expenses the
authorities give free legal aid to them. Almost all the states in India have
their own legal services authority which is the principal body dealing in the
matters of Mediation, Conciliation and Lok Adalat.
Panchayat system in India has lost its past sheen, but it still exists for some
executive purposes and has not completely vanished. In the recent past, the
government has taken several steps to encourage mediation. In 1992 the Rajiv
Gandhi government passed the 73rd Constitutional Amendment[55] to mandatorily
establish the three-tier Panchayat system in every district with an attempt to
revive the indigenous Panchayat system. To revive the judicial function of the
panchayats the government has taken several steps in this direction. These
involve the formation of small panels at the village, block and district level
which will resolve local matters with the assistance of the police and other
authorities and the results are surprisingly well. Especially in states like
Maharashtra and Madhya Pradesh this model is doing wonders. The experience of
Maharashtra State in this regard is very encouraging and emphasizes the
importance of techniques like mediation in dispute settlement[56]. The success
of this experiment is reaffirming the belief of people in the home-grown
Panchayat system.
Taking everything into account it very well may be said that the historically
tested Panchayat system can come to rescue the overburdened judiciary by
providing simple, practical and cost effective settlement of disputes in India.
The Panchayat system has proven very effective in the past and since ages, it is
performing an exceptional role in conflict resolution. The skills and expertise
of the Mediators i.e. the "Sarpanch" and the "panchas" must be channelized in
successful dispute resolution. It is important to guarantee that the Panchayats
all over India are set up in a way that encourages execution of this job of
Mediation. The government should ensure that the panchayats all over India are
provided with the proper infrastructure to facilitate dispute resolution. Proper
workshops and training sessions should be compulsorily provided to the Village
headman and his council to polish their skills as adjudicators and mediators to
conduct sessions. There is also a need to educate the commons about the perks of
this mechanism to discourage them from unnecessarily knocking the doors of law
courts. Proper incentives and awareness should be given to the people to settle
their dispute via mediation. The Panchayats who have successfully adopted the
said model should be appreciated by the authorities for the same. As majority of
the population of India stays in villages this model will be of great importance
in providing a very impelling alternative for dispute settlement.
The type of mediator one needs as well as deserve-Attributes of a
good mediator
Defining Mediation is very challenging, but if we are to define it, the aptest
word would be to consider it to be a mode of conciliation that has had a long
history and as of late has increased as a method of legal reconciliation. The
reason for this being that mediation is a system that poses many attractive
advantages, namely, proving each party with full control over the procedural
method of the session as well as allowing each party to have autonomy over the
outcome over their session.[57] The word 'mediation' is derived from the Latin
term 'mediare' which means to be in middle.[58]The basic principles of mediation
are Confidentiality; Willingness; Legality; Inexpensiveness etc.[59]
In the mediation proceedings, a mediator is a neutral third party[60] which uses
effective and specialized communication and negotiation techniques[61] and thus
aids the parties in arriving at an amicable settlement.[62] Choosing the right
mediator is extremely important to the success of the mediation, there are
certain characteristics a good mediator possesses or has trained themselves to
actively engage in techniques that can assist clients in settling the dispute.
These various types of mediator styles then give parties the chance to choose
which may be more suitable towards their own particular needs and wants.
Here we would be listing certain traits every mediator must inculcate during the
process of mediation. These are-
Confidentiality:
'Confidentiality' in layman terms means the state of keeping
or being kept secret or private. In mediation, it takes has a slightly different
meaning, it means that the adjudicator or mediator will not disclose anything
discussed before, during or after the mediation process to any other person
except the people who were a part of the process and that too if necessary.[63]
He is obligated to destroy all the drafting and notes made during the session
and can disclose it to the opposite party or any third party only if it is
expressly permitted by the concerned party. It is one of the most vital
attributes which makes mediation very attractive to people.
In commercial
matters, the parties generally do not wish to wash dirty linen in public and aim
to resolve the dispute without the media or their competitors getting knowledge
of it, mediation provides them with the best platform for dispute resolution, as
here, the mediator will keep all the facts and delicate information to himself.
It has been observed in many instances that famous business houses have resolved
very critical issues through Alternate Dispute Resolution mechanisms without the
public and media getting a wind of it. In family feuds, if the matter goes to
the formal court, then the situation becomes such that both the parties throw
sludge on each other to such an extent that reconciliation becomes next to
impossible, mediation provides an out and out solution to it. Mediation has a
provision for caucus or private talks, in this, the parties can put forward
their views and the mediator presents one party's view to the opposite party
only if necessary and that too in a dignified and acceptable form. A mediator is
required to make an unwritten pledge that he/she would maintain utmost
confidentiality at all times.[64]
Be a good listener - In court, the advocate becomes a mouthpiece of the
litigants. Mediation, unlike litigation, provides a platform to the parties to
speak up. The parties, especially in family matters, come to the mediation
sessions with a lot of emotional baggage. They look upon the mediator as a
fetish who would help them unload this baggage by listening and solving their
problems. Many people are of the opinion that good communication skills are
synonymous to good speaking skills but there is also another side to it which is
to be a good listener. In fact, since we have two ears and only one mouth,
listening just might be the more important skill.[65] The parties during the
session may disclose certain crucial information and thus it makes it very
important for the mediator to be a good auditor. Half of the battle is won if
the mediator is a good listener.[66]
Legal Knowledge – In India, Mediation has a history as old as the Rig Veda and
earlier it existed in the form of Panchayat system.[67] This particular trait of
command of legal knowledge is not necessary for community-mediation but for
court assisted and institutional mediation this becomes mandatory. It is a
well-established fact that a mediator is having the freedom to choose the
procedure that is to be involved during the proceedings, but it should be kept
in mind that the procedure adopted should be based on the principles of natural
justice and not against the public policy. It is preferable that the mediator is
having a law-related background for example, he/she should be a lawyer or an
ex-judge. The mediator is expected to have the basic knowledge about subjects of
law such as Contract Law, Personal Laws and Property Laws etc. The settlements
made among the parties should be such that they would not fall apart once they
are tested on the touchstone of law.[68]In India, Mediation Rules, 2003 [69]have
laid down a set of compulsory rules that are to be followed by the
court-appointed mediators present across the nation.
Promptness and timeliness – Everyone is aware of the 'tareek pe tareek' culture
in India, the main reason for the formulation of alternate modes of dispute
settlement was that the Courts in India are becoming sluggish and slack with
every passing day. Cases go on for years and years, in many cases, it was found
that the litigant had passed away before the final judgement of the case. The
mediation process, unlike the conventional courts, generally have a pre-planned
schedule.[70] The mediator in consultation with the parties prepares and
schedule slots for the parties as per their time and convenience. A good
mediator should try and make sure that time is not wasted in unnecessary and
malicious delays, but he should also know when it is imperative to take
adjournments. Sometimes it becomes essential to give adjournments, so as to give
the parties a proper chance to make strategies, consult the elders and to bring
down their emotional quotient.[71]A mediator is expected to know what is
foremost for their clients and should always act in the best interest of the
parties. At times, the parties may opt for mediation just to delay the matter
and waste the time, a mediator should be able to speculate and judge these
ballgames and accordingly respond to it.
Professionalism – According to the Cambridge Dictionary[72], 'professionalism'
means the combination of all the qualities that are connected with trained and
skilled people. In a similar vein, the mediators are required and expected to
act like professionals. This starts with dolling up in professional attire. The
clients should be in the impression that they are sitting in an actual court
where the only thing going on is business.[73] There is a hair-line difference
between the expected professionalism in a court and a mediation session and the
person who gets this matures into an excellent mediator. Alternatively,
overdressing might turn into a disaster, as on many occasions, the parties might
not be from a very opulent background and thus overdressing might ruin the
confidence of the parties.[74] Also, professionalism should not be confused to
using technical and legal jargons, the mediator should use the terminology and
vocabulary which the parties can apprehend and comprehend, for example, if the
parties in the case are not comfortable in communication in English language and
even after this the mediator is still using it thinking that it might look
unprofessional will be a massive faux pas. Another important aspect of
professionalism is giving credit. A mediator should always make sure that due
credit is given to all the people who have assisted the parties during the
mediation session.[75]
In conclusion, we can say that at the end of the day, even mediators are human
beings and thus possessing all these traits are not practically possible but
still, every person in this business should try to infuse these characteristics
to be able to give their best. Different contexts require the conscious use of
different personal qualities for the best services available in the interest of
the users.[76] Also, every dispute is idiosyncratic and we cannot evolve a
straight-jacket formula of how to react in a particular situation, but the best
thing to do is to provide the mediators with proper instruction and training.
Mediation has a lot of scope in India and we have a gold mine of the best
mediators in the world and in the future, we can be a Mediation Hub for the
world.
Process of Arbitration in India: A beginner's guide
Abstract:
The Indian judiciary is plagued with a plethora of cases on a day-to-day basis,
and this institution is forced to deal with these avalanches of lawsuits. The
judicial wing is oftentimes said to be inefficient and slow in its approach.
Since the inception of trade practices, it could be observed that when two
people decided to trade or enter into a transaction with each other, there would
always be a possibility that some form of misunderstanding would creep in. With
evolved times and with an evolved legal system, the legal mechanisms were viewed
as a medium through which conflicts could be resolved. However, litigation was
seen as one of the only means of settling out disputes, arising out of complex
backgrounds. Nonetheless, other resolution mechanisms have been arising to
effectively resolve disputes. Arbitration is even viewed as the most common
forms of alternatives to litigation. It has time and again been hailed as more
effective and less time consuming than the formal litigation. Arbitration has
seemed to have opened the doors for other forms of justice systems. Arbitration
is also less rigid as opposed to the traditional litigation system. The aim of
this paper, hence, would be to analyze the procedures involved during the
process of arbitration.
A layman may be tormented and ambushed at the thought of experiencing the
convoluted and cumbersome rules and procedures of the customary and old
fashioned mechanism of litigation. The judiciary in India since time immemorial
is been accused of excessive red- tapism. India since Independence has witnessed
various reforms in the judicial sector but it is still plagued with several
problems. Owing to these endless grievances, new and better forms of dispute
resolution are coming to the rescue. All the civil disputes can be settled at
any of the following two forums i.e. Courts and Tribunals, or Alternate Dispute
Resolution (ADR), it is inclusive of all the mechanisms which assist outside
court settlement these include includes Mediation, Conciliation, and
Arbitration. Looking at the condition of the formal mode of settlement, it will
be alluring to choose ADR for its various benefits such as Cost effectiveness,
No appeals and Timely results. The concept of Alternative Dispute Resolution (ADR)
emerged in the Indian context in the late 1990s to deal with the avalanche and
the barrage of cases that were cropping up. India now has a dedicated law on ADR
for Example the Arbitration and Conciliation Act, 1996 which is on similar lines
with the model law on International Commercial Arbitration in 1985 by the United
Nations Commission on International Trade Law [77](UNCITRAL). These model rules
are committed to effective and productive resolution of International disputes.
The Indian law on Arbitration i.e. The Arbitration and Conciliation Act 1996 is
focused on mediation, creation of grants, creation of courts, technique for
intervention, response against arbitral awards, conclusion of arbitral honors
and their implementation, requirement of outside honors and so forth. The aim of
this paper, hence, would be to analyze the procedures involved during the
process of arbitration.
Arbitration in India is opted when conflict arises between two parties, who are
bound by a legally valid contract. The precondition of Arbitration is that the
parties have an Arbitration Agreement, which highlights and signifies the assent
of the parties to undergo arbitration proceedings to resolve any conflict that
might arise. The mechanism of arbitration, in India, is governed by the
Arbitration and Conciliation Act of 1996.[78]The aforementioned Act is said to
have found its base predominantly on the UNCITRAL Model Law. The Arbitration
process starts with the drafting of the arbitration agreement specifying that if
a dispute arises the parties would opt for arbitration for dispute resolution.
Alternatively, a special contract can signed between the parties. That is, this
declaration could be made even in the form of a clause, instead of drafting a
new contract altogether. When a dispute arises, the Non - defaulting party can
send a notice to the defaulter and this marks the beginning of the arbitration
proceedings. Once the invocation of the arbitration has been completed, the two
parties to the arbitration proceedings would undertake in the activity of
appointing arbitrators according to the procedure established by the arbitration
agreement. It means that the parties to the dispute have a free will to decide
on the number of arbitrators they would want. But the number should not be an
odd one. In case they fail to appoint arbitrators, only a single arbitrator
would be appointed to conclude the proceedings. The section 11 of the
Arbitration and Conciliation Act of 1996[79] empowers the parties to appoint
arbitrators with court's assistance.
The court's assistance is provided so as to expedite the whole process of
appointing arbitrators and to avoid any inadvertent delays that are commonplace
in the conventional forms of litigation. After the invocation of the arbitration
is complete, the party who is resorting to the said proceedings is mandated to
file a statement of claims, which contains a statement of facts, which briefly
explain the contention at hand. Moreover, the statement of claims also contains
the relief that the party would like to receive due to the breach or the
non-performance of the contractual obligations of the defaulter. It is
interesting to note that the statement of claims could be amended at any time
during the proceedings, unless agreed otherwise by the parties of the
arbitration. The statement of claims, so filed, must be sent to the defaulter.
In response to the statement of claims, the defaulter files a statement of
defence, wherein, he/she refutes the claims made by the applicant or the invoker
of the arbitral proceedings. This is done with sufficient evidence to prove the
refutations. The arbitral tribunal then hears out each party and scrutinises
evidence provided in their favour closely. After sufficient deliberation, the
arbitral tribunal passes an Award, which is essentially the decision arrived at
by the tribunal. This 'Award' is often seen as analogous to a judgement passed
by the courts of law. Once the Award has been passed, the party, in whose favour
the award has been passed, has to ensure that he/she files an enforcement order
so as to make certain that the Award pronounced is being implemented
sufficiently. This is done with the help of a good arbitration lawyer.
The Section 34 of the Arbitration and Conciliation Act of 1996[80] lays out
various grounds on which an Award that was pronounced could be set aside. The
sub section 3 of the section 34 of the Arbitration and Conciliation Act of
1996[81] lays down these grounds. For instance, an Award could be set aside in
case the party that is making an application for invalidating an Award if the
said party could prove that either party, who was subjected to the arbitral
proceedings was incapable of being a party to the said proceedings. That is the
person who was subjected to the proceedings was mentally incapable of being a
party to such arbitral proceedings. Another ground for the invalidation of an
arbitral Award could be on the ground that the arbitration agreement, in itself
is invalid. That is, the DE legitimization of the arbitration agreement, in
itself, renders the Award pronounced to be void. Furthermore, another ground for
the setting aside of an arbitral Award, could be on the ground that the party
making the said application for the rejection of Award, was not given a proper
notice about the commencement of arbitral proceedings. Additionally, the party
making such application could also prove that he/she had not received a proper
intimation about the appointment of an arbitrator. Furthermore, the party making
the said application could also prove that he/she was not able to make his/her
case, owing to the miscommunication, thereby, going against the principles of
natural justice. Moreover, an Award, so pronounced, could be set aside if it
could be proved that the dispute that was resolved, through the means of
arbitration was beyond the scope of the arbitration agreement. That is, the
dispute does not fall within the terms laid out in the terms of the arbitration
agreement.
In case there is a part of the decision that does not fall within the ambit of
the arbitration agreement, only that part of the decision would be struck down;
the remaining decision would be implemented with full effect. Another major
factor that could invalidate an Award pronounced could be that the composition
of the arbitral tribunal was not according to the one stipulated by the arbitral
contract. Additionally, the arbitral proceedings not being in accordance with
the procedure established in the arbitration agreement. In such instances, the
Award, so pronounced would be set aside. On top of that, the arbitral Award
pronounced could also be struck down by the Courts on various grounds. For
instance, an arbitral Award could be abrogated in case the subject matter of the
contention of the arbitral proceedings at that point of time was incapable of
being settled by the law. Moreover, the courts of law could declare an Award, so
pronounced as null and void if the decision is in the contravention of public
policy of India. To elaborate, the decision or the Award pronounced was in
contravention with the principle of equity. That is, the decision was brought
forth on the grounds of corruption or any other means of misfeasance.
The courts may also adjourn proceedings in case the party challenges the
arbitral proceedings. The term 'public policy' had been interpreted along
similar lines in the case of Renusagar Power Co. Ltd v. General Electric Co,[82]
it was held that public policy in cases of Arbitration was anything that was not
against the fundamental policy of India, and something that is not against the
principles of morality. It is interesting to note that the constitutional
validity of the Section 34 was challenged in the case of TPI vs Union of India
wherein, the petitioner of the case had asserted and maintained that an arbitral
award, must be subjected to challenge and if this provision for challenging were
not provided, the Section 34 would be constitutionally invalid. However, the
Court held that the subject matter was not within their scope for judicial
review.
The subsection 3 of the section 34 of the Arbitration and Conciliation Act of
1996[83] lays down a limitation period, beyond with a party cannot challenge the
arbitral Award, laid down, according to the Section 31 of the Arbitration and
Conciliation Act of 1996.[84] That is, the application for the setting aside of
the arbitral Award cannot be made after three months of the actual pronouncement
of the award. However, if the court is convinced that the party could not have
made the application for challenging the award within the three months'
limitation period due to legitimate reasons, it may take into consideration an
application of challenge even after the lapse of the 3-month limitation period.
That is the court could extend the limitation period by 30 days if it is
convinced that the party had a valid, legitimate reason for not being able to
make an application within the 3-month limitation period. Moreover, in case the
limitation period, under the Section 34(3)[85] has expired, the party could
enforce the same through the Code of Civil Procedure of 19081.[86] Moreover, the
Section 43 of the Arbitration and Conciliation Act of 1996[87] mentions that the
Limitations Act of 1963[88] would be applicable for the instances of arbitration
also, in the same way as it would be applicable for ordinary cases in a court of
law.
A superficial reading of the Arbitration and Conciliation Act of 1996[89] would
enable us to reach a conclusion that the limitation period would commence on the
mere delivery of the Award, which would be called a receipt, upon the said
delivery. However, the Supreme Court held that the delivery has to be effective
in order for it to be known as a receipt. As mentioned in the Act, the
limitation period starts upon the receiving of the receipt. It has been made
exceedingly clear that the civil proceedings that would arise out of the
Limitations Act of 1963, would also commence in the presence of an arbitrator.
It has been repeatedly iterated by many that the limitations, as available for
the ordinary courts of law, must also be applicable for arbitral proceedings,
for the sake of the principles of equity and for the furtherance of the
principles of justice and fairness.[90] Moreover, it has been iterated that
since the Limitation Act of 1963 has laid out the limitation period for claiming
actions under disputes that arise out of contract to be three years, anything in
the arbitration agreement that is in contravention must be implied to be void to
that extent. However, since the Arbitration and Conciliation Act of 1996,[91] is
a special Act, certain limitation clauses within the Act could have the
overriding effect on the original limitation periods, as stipulated by the
Limitation Act of 1963.[92]
The lack of partiality and any forms of predispositions among the arbitrators is
very essential to the process of arbitration to be carried. In fact, this
standard against bias is essential in all judicial and quasi-judicial
proceedings. However, this is most pertinent in arbitral proceedings because the
arbitrators are appointed according to the contract written by the parties to
the proceedings. That is, the arbitrators are appointed as per the discretion of
the parties to the arbitration themselves. This could point to the fact that
some form of predilections could inadvertently creep in. Hence, it must be
ensured that the arbitrators, so appointed do not look into the individual
interests of the parties and instead take into consideration the case at hand
with no external influences whatsoever. That is, the arbitrators are to raise
above the pre-existing relations that they might have with the parties involved.
However, it should be pointed out that the Arbitration and Conciliation Act of
1966, does not lay down any said guidelines to ensure that there are no such
biases. To tackle these issues, there was an amendment to the aforementioned act
in the year 2015, which attempted to introduce a few guidelines to ensure that
the arbitration proceedings were not commenced on the basis of malfeasance. This
amendment further attempted to facilitate the principles of natural justice and
upholding the fairness in the arbitral proceedings.
For instance, the amendment to the Act had now added a provision to the Section
12(1) of the Arbitration and Conciliation Act[93] of 1996, which mandates the
arbitrator, so appointed to disclose the relationship that he shares with the
party of the arbitral proceedings. The past relationship held, will then be
subject to a lot of scrutiny, to ensure that the relationship, so held shared by
the arbitrator and the party would not influence and deviate the due course of
the arbitral proceedings. The new amendment to the said Act also saw the
inception of a new provision. This new provision was inserted within a new
section, the Section 12(5) of the Amendment Act. This section goes into depths
and specifies the various grounds and conditions, which would render an
arbitrator to be ineligible and incompetent to be an arbitrator of the arbitral
proceedings. Additionally, it is pressing to note that the Section 15 of the
Amended Act empowers the parties of the arbitration to appoint a new arbitrator,
in case the previous arbitrator was disqualified on the grounds of unfairness.
The Arbitration and Conciliation Act, 2015, s. 15.
To conclude, arbitration, a mechanism under the umbrella of Alternative Dispute
Resolution (ADR) has proved to be very effective in its approach. It has time
and again proved to be a very effective means to the resolution of any conflicts
or disputes that arise among two or more parties. Arbitration has also proved to
be very flexible and fluid in nature. This is owing to the nature of the
procedures. That is, the procedures involved are very simplified and easy to
understand even by a layperson. Arbitration is also said to be a very convenient
means of resolving conflicts because the proceedings arranged are done so
according to the comfort of the parties. Even though Arbitration has proved to
be very efficient and cost-effective in resolving conflicts, there are certain
demerits and challenges that one might face when he/she might choose arbitration
as a means to conflict resolution.
For instance, arbitration does not follow fixed standards during the arbitral
proceedings. These inconsistencies could arrive when the arbitrator, so
appointed is biased. Another major drawback of this mechanism is that the
process involves only an exchange of documents. That is, the mechanism has no
room for witnesses. This in turn gives rise to a lack of scope for
cross-examination, which might prove to be fruitful in settling these
proceedings in a more efficient manner. Yet another considerable concern with
regard to the arbitral proceedings is that there is a strict clause in the
Arbitration and Conciliation Act of 1996,[94] which seeks to maintain a sense of
confidentiality of the proceedings that take place. This lack of transparency
and closeness, might prove to be disadvantageous to a party of the proceedings
henceforth, it could be contended that the system of Arbitration has a long way
to go.
End-Notes:
[1] *
[2] Bryan A. Garner ,Black's Law Dictionary (9th edn.).
[3] Dr. Shraddhakara Supakar, Law of Procedure and Justice in Ancient India,
Deep & Deep Publication, New Delhi, 1986.
[4] 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
Resolution: Negotiation, Mediation and other Processes (Aspen Law & Business,
New York, 3rd Edn.).
[5] 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 Soc'y Rev. 709
(1988).
[6] See Joanne Goss, An Introduction to Alternative Dispute Resolution, 34 (1)
Alta. L. Rev. 1 (1995) (Can.).
[7] 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
[8] 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 on 10.04.2010);
[9] Available at https://uncitral.un.org/en/texts/mediation/conventions/international_settlement_agreements
(last accessed 6th Dec, 2019).
[10] Civil Procedure Code, 1908,§89
[11] Industrial Disputes Act,1947,§4
[12] Writ petition 496 of 2002.
[13] 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).
[14] Ashwanie Kumar Bansal, Arbitration and ADR 19 (Universal Law Publishing Co.
Pvt. Ltd., Delhi, 2005
[15] There is no statutory provision like s. 75, Arbitration and Conciliation
Act, 1996 which affords confidentiality in mediation as a statutory guarantee.
[16] 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.
[17] 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.,
Delhi,1997)
[18] 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
(March 2010
[19] Kuljit Kaur, Mediation: As a Technique for Alternative Dispute Resolution
System, Nyaya Kiran 19 (D.L.S.A., April–June, 2008)
[20] The Delhi Mediation Centre, Annual Report (2006-2007)
[21] R.V. Raveendran, Mediation - Its Importance and Relevance, (2010) PL
October 10.
[22] 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).
[23] Ibid
[24] The Sociological school of jurisprudence of which Roscoe Pound is the
ardent philosopher firmly believes in this functional approach to the law and
legal system. He calls it 'Social Engineering'. Fitzgerald, Salmond on
Jurisprudence, p.n.9.
[25] Bryan A. Garner, Black's Law Dictionary (9th edition.).
[26] Alternative Dispute Resolution, Practitioners' Guide, Centre for Democracy
and Governance, Washington, 1998
[27] Dr. Shraddhakara Supakar, Law of Procedure and Justice in Ancient India,
Deep & Deep Publication, New Delhi,1986.
[28] The difficulties include, satisfaction of any one party involved in the
dispute which sometimes is not fair, heavy consumption of time and the costs,
technicality, etc.
[29] See Maneesh Chhibber, 'Do we need moreion judges? CJI Thakur's plea to the
govt raises key question'.
[30] 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
Resolution:
Negotiation, Mediation and other Processes (Aspen Law & Business, New York, 3rd
Edn.).
[31] 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 Soc'y Rev. 709
(1988).
[32] See Joanne Goss, An Introduction to Alternative Dispute Resolution, 34
(1) Alta. L. Rev. 1 (1995) (Can.).
[33] 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).
[34] 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
on 10.04.2010);
[35] The Supreme Court of India has constituted a permanent committee of the
judges to address the matters concerning mediation and is mandated to encourage
and develop mediation as a dispute settlement mechanism. http://supremecourtofindia.nic.in/committees.htm
[36] DISPUTE RESOLUTION IN RURAL INDIA: AN OVERVIEW,Written by Dr. Laju P.
Thomas, St Mary's ,Thiruvananthapuram, pp 97-98
[37] Ibid
[38] Ibid
[39] Law Beacon, Peer-reviewed, Bi-annual Journal Published by Akola Law
College, Vol.1 ISBN 978-81-930238-0-8, pp 92-96
[40]Garg BS. Village First Community Empowerment on Health & Development Based
on Gandhian Approach – An Experience of Working in few Villages of Wardha
District, Maharashtra Indian J Med Res 2019 , 149, suppl S1: 63-67a.
[41] Naidu, M. (2006). INDIAN DEMOCRACY: A CASE STUDY IN CONFLICT RESOLUTION AND
PEACE BUILDING. Peace Research, 38(2), 71-97. Retrieved May 5, 2020, from
www.jstor.org/stable/23607991
[42] http://delhimediationcentre.gov.in/history.htm
[43] P.B. Udgaonkar, Political Institutions and Administration, Motilal
Banarsidass Publishers Pvt. Ltd., New Delhi,1986, p. 209.
[44] Tewari, O.P, The Arbitration & Conciliation Act with Alternative Dispute
Resolution, 4th Edition(2005) Reprint
2007, Allahabad Law Agency, Faridabad, pp. 2- 4
[45] Sarvesh Chandra, ADR: Is Conciliation the Best Choice, in P.C. Rao and
William Sheffield (eds.), Alternative
Dispute Resolution: What it is and How it Works, Universal Law Publishing Co.,
New Delhi, (1997) p. 85.
[46] Supra 15
[47] . K. Jayachandra Reddy, Alternate Dispute Resolution, in P.C. Rao and
William Sheffield (eds.), Alternative
Dispute Resolution: What it is and How it Works, Universal Law Publishing Co.,
New Delhi, (1997) p. 79
[48] Part IX and Art.243 of the Indian Constitution make comprehensive
provisions for establishment and regulation of Panchayat system.
[49] The Constitution of India, 1950, Art. 40.
[50] Before 1996 ADR in India was regulated via Arbitration (Protocol and
Convention) Act, 1937; Indian Arbitration Act, 1940 and Foreign Awards
(Recognition and Enforcement) Act, 1961.
[51] Section 89 of Code of Civil Procedure 1908 read with Order X, Rules 1A, 1B
and 1C
[52] In Afcons Infrastructure Ltd. and Anr. v. Cherian Varkey Construction Co.
(P) Ltd. and Ors. (2010) 8 SCC 24 the court equated mediation to the proceedings
before Lok-Adalat.
[53] kelsa.nic.in The Legal Services Authorities Act of 1987
[54] legalserviceindia.com
[55] The Constitution (Seventy Third Amendment) Act, 1992.
[56] These Committees in Maharashtra are called 'Tanta Mukta Samiti' and they
are aimed at achieving the goal of dispute free village(Tanta Mukta Gaon)
http://www.mahapolice.gov.in/mahapolice/jsp/temp/disputefree.jsp
[57]STA Law Firm, Comparative Analysis Of ADR Methods With Focus On Their
Advantages And Disadvantages, Mondaq, February 05, 2019, https://www.mondaq.com/arbitration-dispute-resolution/777618/comparative-analysis-of-adr-methods-with-focus-on-their-advantages-and-disadvantages
[58] Cheryl A. Picard, The Many Meanings of Mediation: A Sociological Study of
Mediation in Canada' (Carleton University,Ottawa, Ontario, 2000).
[59] Serdara Jola Piletića, Podgorica, Basic Principles of Mediation, August 29,
2017, http://www.posredovanje.me/en/posredovanje/osnovna-nacela-posredovanja
[60] Stephen B. Goldberg, Frank E.A. Sander, Nancy H. Rogers & S.R. Cole,
Dispute Resolution:
Negotiation, Mediation and other Processes (Aspen Law & Business, New York, 3rd
Edn.).
[61] Joanne Goss, An Introduction to Alternative Dispute Resolution, 34 (1)
Alta. L. Rev. 1 (1995) (Can.).
[62] Henry J. Brown and Arthur L. Mariot, ADR Principles and Practice (Sweet &
Maxwell, London, 2nd Edn.,1997).
[63] Kimberly Taylor, Esq., Mediation: Confidentiality and Enforceability, JAMS
ADR Blog, April 6, 2015, https://www.jamsadr.com/blog/2015/mediation-confidentiality-and-enforceability
[64] Shraddha Bhosale, Confidentiality in Mediation: An Indian Perspective,
Kluwer Mediation Blog, January 18, 2016, http://mediationblog.kluwerarbitration.com/2016/01/18/confidentiality-in-mediation-an-indian-perspective/?doing_wp_cron=1597226022.6561560630798339843750
[65] Nancy Foster, Good Communication Starts With Listening, MediateIndia.com,
mediate.com/articles/foster2.cfm
[66] Robert Bolton, People Skills (New York: Simon & Schuster, 1979)
[67] Dr. Pankaj Kakde, Mediation via Panchayat System in India: Ancient to
ModernIndian Jurisprudence, Law Beacon, Peer-reviewed, Bi-annual Journal
Published by Akola Law College, Vol.1 p.n. 92-96
[68] LaxmiKant Gaur, QUALITIES OF A GOOD MEDIATOR, delhidistrictcourts e-
Journal, https://delhidistrictcourts.nic.in/ejournals/Q_mediation2.pdf
[69] ADR and Mediation Rules, 2003, https://www.latestlaws.com/bare-acts/central-acts-rules/alternative-dispute-resolution-laws/arbitration-and-conciliation-act-1996/adr-mediation-rules2003/
[70] Pon Staff, The Mediation Process and Dispute Resolution:Understand the 6
steps necessary in the mediation process, HARVARD LAW SCHOOL DAILY BLOG, July 7,
2020, https://www.pon.harvard.edu/daily/mediation/dispute-resolution-how-mediation-unfolds/
[71] Supra at 12
[72] Profesionalism, Cambridge Dictionary, (10th ed. 2014)
[73] Josefina Rendon, Mediator Ethics and Professionalism: A Recipe for Success,
MediateIndia, https://www.mediate.com/articles/RendonJ6.cfm
[74] Ibid
[75] David Jones, The Advantages and Disadvantages of Mediation, Glaisyers,
November 8, 2019,
https://www.glaisyers.com/advantages-and-disadvantages-of-mediation/
[76] Constantin-Adi Gavrila, 212 qualities of a good mediator, Kluwer Mediation
Blog, February 12, 2012,
http://mediationblog.kluwerarbitration.com/2012/02/19/212-qualities-of-a-good-mediator/?doing_wp_cron=1597337821.1736419200897216796875
[77] Available at: http://www.uncitral.org/ (last viewed on Dec. 15, 2019).
[78] The Arbitration and Conciliation Act, 1996.
[79] The Arbitration and Conciliation Act, 1996, s.11.
[80] The Arbitration and Conciliation Act, 1996, s.34
[81] Supra note 1 at 4.
[82] Renusagar Power Co. Ltd v. General Electric Co, 1994 SCC Supl. (1) 644.
[83] The Arbitration and Conciliation Act, 1996, ss. 3, 34
[84] The Arbitration and Conciliation Act, 1996, s. 31
[85] The Code of Civil Procedure, 1908.
[86] The Arbitration and Conciliation Act, 1996, s.43.
[87] The Limitation Act, 1963 (36 of 1963).
[88] Supra Note 1 at 4
[89] Ibid at 8.
[90] Dr. Anupam Kurlwal, Applicability of limitation act to arbitration
proceedings: A critical study, 4 IJL 185 (2018).
[91] Supra note 1 at 4.
[92] 17Id. At 8.
[93] The Arbitration and Conciliation Act, 2015, ss.1, 12. 19The Arbitration and
Conciliation Act, 2015, ss.5, 12. 20 The Arbitration and Conciliation Act, 2015,
s. 15.
[94] Supra note 1 at 4.
Written By: Hrishikesh Prakash Jaiswal - 3rd year B.A., L.L.B(Hons) student at National Law Institute University,
Bhopal, India
Law Article in India
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