Uttar Pradesh State Legal Services Authority

2019

SUBJECT: Internship Report

Final Draft on:

Mediation and Conciliation with minor difference in approach

have similar objectives

UNDER THE GUIDANCE OF SUBMITTED BY

Smt. Jyotsana Sharma PRASHANT SINGH

(HJS) Secretary, UPSLSA BA LLB (6th Semester)

Lucknow BANARAS HINDU UNIVERSITY

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 TABLE OF CONTENTS

1. Acknowledgement

2. Introduction

3. What is Alternative Dispute Resolution?

4. Arbitration as an effective mechanism for dispute resolution

5. History of Arbitration in India

6. The prospects of the arbitration or the reason due to which it is more preferable
7. Arbitration system faces some challenges which are briefly discussed
8. Conciliation as an ADR mechanism
9. The adoption of conciliation process in India

10.Issues in post-litigation conciliation

11. Mediation in the dispute resolution mechanism

12. Role of the mediator

13. Growth of mediation centres in India and Its impact on ADR mechanism

14. Growth of mediation centres in India and Its impact on ADR mechanism

15. Court-annexed mediation

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16. How mediation is helpful for the courts?

17. Obstacles in the implementation of this mechanism

18. Why you should choose mediation?

19. Why is ADR preferred more than litigation?20. How arbitration, mediation and conciliation
are different from each other?

21. Difference Between Mediation and Conciliation

22. Comparison Chart

23. Key Differences Between Mediation and Conciliation

24. Objectives and Similarities

25. Conclusion

26. References

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 ACKNOWLEDGEMENT
I have taken efforts in this report. However, it would not have been possible
without the kind support and help of many individuals and various resources. I
would like to extend my sincere thanks to all of them.

I am highly indebted to Smt. Jyotsana Sharma for his guidance and constant
supervision as well as for providing necessary information regarding the project &
also for their support in completing the report.

I would like to express my gratitude towards my parents & batchmates of UPSLSA

for their kind co-operation and encouragement which helped me in completion of
this project.

My thanks and appreciations also go to my batchmates in developing the report

and people who have willingly helped me out with their abilities.

INTRODUCTION

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One of the questions constantly asked by many is as to what is meant by
conciliation and mediation, whether they are the same and, if not, whether there
are any differences?

Whether, in common parlance, there is some difference between conciliation and

mediation or not, it is however clear that two statutes by Parliament treat them as
different. (a) In the year 1996, the Arbitration and Conciliation Act, 1996 was
passed and sec. 30 of that Act, which is in Part I, provides that an arbitral tribunal
may try to have the dispute settled by use of ‘mediation’ or ‘conciliation’. Sub-
section (1) of sec. 30 permits the arbitral tribunal to “use mediation, conciliation or
other procedures”, for the purpose of reaching settlement.

(b) The Civil Procedure Code (Amendment) Act, 1999 which introduced sec. 89, too
speaks of ‘conciliation’ and ‘mediation’ as different concepts. Order 10 Rules 1A,
1B, 1C of the Code also go along with sec. 89.

Thus our Parliament has made a clear distinction between conciliation and
mediation. In Part III of the 1996 Act (sections 61 to 81) which deals with
‘Conciliation’ there is no definition of ‘conciliation’. Nor is there any definition of
‘conciliation’ or ‘mediation’ in sec. 89 of the Code of Civil Procedure, 1908 (as
amended in 1999).

Arbitration, mediation and conciliation are the main Alternative Dispute Resolution
Mechanism which is generally adopted by the people to resolve their disputes in
an informal manner. They try to reach a solution by settlement or negotiation with
the assistance of a third neutral party and have turned out to be an effective
alternative to the litigation process.

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What is alternative dispute resolution?

When the method of resolution of the dispute chosen by the parties is other than
the arbitration, in the form of mediation, negotiation, conciliation, Lok Adalat,
online arbitration, then it is Alternative Dispute Resolution (herein referred to as
ADR). ADR opens the way in the field of business and tends to solve the matter
more efficiently and effectively. It is basically a dispute settlement through
negotiations. In the arbitration, a dispute is decided by imposing an award, but ADR
is more likely to find a solution to the dispute by negotiating between both the
parties. The purpose of ADR is more than merely giving a remedy to the parties. It
aims to ensure that the contract operates properly.

Arbitration as an effective mechanism for dispute resolution

Arbitration is a form of dispute resolution method in which the parties avoid the
court proceedings and instead decide to resolve their dispute through appointing
a third person, who is known as an arbitrator. An arbitrator is appointed in labour
disputes, business and consumer disputes and family law matters.

“an arbitration is the reference of dispute or difference between not less than two
parties, for determination after hearing both sides in a judicial manner by a person
or persons other than a court of competent jurisdiction.”[1]

History of arbitration in India

Arbitration was practised in India from the ancient times through Puga, Sreni, Kula
and Panchayat. These were the bodies who decided and resolved the disputes in
the alternative of courts. After that many acts were passed to give arbitration a
uniform meaning and to give it a statutory recognition. The recent act of arbitration
was ‘The Arbitration and Conciliation Act, 1996’ which was amended in the year
2015, due to certain drawbacks in the said act.

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The prospects of the arbitration or the reason due to which it is more
preferable

 Expertise in technical matters: an arbitrator can easily deal with technical

matters which is scientific in nature because arbitrators are appointed on
the basis of their knowledge and skill in the particular field. So they can
resolve the dispute more efficiently and effectively.
 The process of arbitration works more quickly and is more cost-effective
than the courts.
 There is the convenience of the parties in arbitration as they are free to
decide the venue and time of the proceedings.
 Privacy and confidentiality of the parties are maintained as there is no
unnecessary publicity of the dispute.
 Arbitration is more flexible as compared to courts as they do not have to
follow strict rules and regulations as that of court because of the rules set
by the parties only.

Due to these advantages of the arbitration, parties prefer it over litigation. It gives
party full authority to decide their own arbitrator, and in case of international
arbitration, the venue, place or the country in which the arbitration proceedings
will be held is also decided by the parties.

However, there are also certain challenges where the arbitration lacks or defaults
in providing proper arbitral awards and claims. Everything with some advantages
also has loopholes along with it.

Arbitration system faces some challenges which are briefly discussed

 If the parties, by agreement decide the arbitral award and decision to be

final, then they waive their rights to access the courts.
 Sometimes the arbitrator acts biased, due to which the very essence of
arbitration is lost.

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  There is not always the case where the cost of the arbitration is cheaper.
It can vary in complexities and may lead to a higher cost than the litigation.
It can be seen in multiple parties, multiple arbitrators and complicated
legal disputes.
 It is very difficult to appeal arbitral rulings. Sometimes a party can face
unfair result and finds the difficulty in appealing to the courts.

Moreover, arbitration is preferable in the matters of commercial dispute and there

is increased development in the arbitration law adopted in our country to make it
more effective and reliable. No matter what is said, it will always be regarded as
the usual method for resolving an international commercial dispute.

Conciliation as an ADR mechanism

Conciliation is a type of ADR where the settlement is made out of court. There is no
involvement of the court in the whole arbitral proceedings. The dispute is settled
by a neutral third party, who is the conciliator. The conciliation process is voluntary
as it is on the mutual discretion of the parties to choose conciliation as a method
of resolving their dispute with the assistance of the conciliator; also the proposal is
not binding upon the parties. They are free to follow or not follow the proposal
given by the conciliator. It presides over litigation because the parties do not have
to go through the technical procedures and formalities of litigation; instead,
conciliation allows parties for a friendly search to reach an amicable solution.

In order to understand what Parliament meant by ‘Conciliation’, we have

necessarily to refer to the functions of a ‘Conciliator’ as visualized by Part III of the
1996 Act. It is true, section 62 of the said Act deals with reference to ‘Conciliation’
by agreement of parties but sec. 89 permits the Court to refer a dispute for
conciliation even where parties do not consent, provided the Court thinks that the
case is one fit for conciliation. This makes no difference as to the meaning of
‘conciliation’ under sec. 89 because; it says that once a reference is made to a
‘conciliator’, the 1996 Act would apply. Thus the meaning of ‘conciliation’ as can be
gathered from the 1996 Act has to be read into sec. 89 of the Code of Civil

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Procedure. The 1996 Act is, it may be noted, based on the UNCITRAL Rules for
conciliation.

Now under section 65 of the 1996 Act, the ‘conciliator’ may request each party to
submit to him a brief written statement describing the “general nature of the
dispute and the points at issue”. He can ask for supplementary statements and
documents. Section 67 describes the role of a conciliator. Subsection (1) states that
he shall assist parties in an independent and impartial manner. Subsection (2)
states that he shall be guided by principles of objectivity, fairness and justice, giving
consideration, among other things, to the rights and obligations of the parties, the
usages of the trade concerned and the circumstances surrounding the dispute,
including any previous business practices between the parties. Subsection (3)
states that he shall take into account “the circumstances of the case, the wishes
the parties may express, including a request for oral statements”. Subsection (4) is
important and permits the ‘conciliator’ to make proposals for a settlement.

It states as follows: “Section 67(4). The conciliator may, at any stage of the
conciliation proceeding, make proposals for a settlement of the dispute. Such
proposals need not be in writing and need not be accompanied by a statement of
the reasons therefore.”

I shall briefly refer to the other provisions before I come to sec. 73. Section 69 states
that the conciliator may invite parties to meet him. Sec. 70 deals with disclosure by
the conciliator of information given to him by one party, to the other party. Sec. 71
deals with cooperation of parties with the conciliator, sec. 72 deals with
suggestions being submitted to the conciliator by each party for the purpose of
settlement. Finally, Sec. 73, which is important, states that the conciliator can
formulate terms of a possible settlement if he feels there exist elements of a
settlement. He is also entitled to ‘reformulate the terms’ after receiving the
observations of the parties. Subsection (1) of sec. 73 reads thus:

“Sec. 73(1) settlement agreement. (1) When it appears to the Conciliator that there
exist elements of a settlement which may be acceptable to the parties, he shall

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formulate the terms of a possible settlement and submit them to the parties for
their observations. After receiving the observations of the parties, the Conciliator
may reformulate the terms of a possible settlement in the light of such
observations.” The above provisions in the 1996 Act, make it clear that the
‘Conciliator’ under the said Act, apart from assisting the parties to reach a
settlement, is also permitted to make “proposals for a settlement” and “formulate
the terms of a possible settlement” or “reformulate the terms”. This is indeed the
UNCITRAL concept.

The adoption of conciliation process in India

The adoption of conciliation process was first recommended by the Law

Commission of India in 77th and 131st report and in the conference of chief
ministers and chief justices in their resolution of 1993. Whereas, the Himachal
Pradesh High Court evolved pre-trial, in-trial and post-trial conciliation project in
the subordinate court in Himachal Pradesh in the year 1984. The Calcutta
resolution which was adopted in 1994, also stated the recommendation of
conciliation courts to be constituted in the other states.

With the adoption of conciliation rules, 1980 by the UNCITRAL, the Parliament of
India also find it expedient and enacted Arbitration and Conciliation Act, 1996
which gave statutory recognition to conciliation. With this, the post-litigation
conciliation was recognised as ADR with the incorporation of section 89 of Code of
Civil Procedure, 1908[2] providing an option for reference of sub judice matters to
conciliation with the consent of the parties.

Issues in post-litigation conciliation

The main issue in post-litigation conciliation is the preference of judiciary towards

mediation over conciliation. Since mediation and conciliation are almost the same,
the publicity of mediation and its recognition as a mode of court-annexed
mediation has been preferable than conciliation. Due to this, it is not utilized to its
full potential. Under section 89 of the CPC, the courts can refer any dispute for

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judicial determination to any of the ADR mechanism namely, arbitration,
conciliation, mediation etc. Among them, mediation and Lok Adalats are mostly
used, which lacks chance for conciliation to grow potentially at the post-litigation
stage.

Mediation in the dispute resolution mechanism

Mediation is a form of alternate dispute resolution, wherein parties mutually

appoint an independent and impartial third party, called as the mediator who
helps the parties in reaching an agreement which is mutually accepted by the
parties concerned.

Mediation has grown as the most advanced form of ADR mechanism. It is one of
the methods for handling human relationships in a positive manner, mainly for the
good of the people involved and for the betterment of the community.[3]

Mediation encourages a search for the solution by the parties themselves, involved
in the dispute. The basic motive of mediation is to provide opportunities to parties
to negotiate and come to a final solution catering the needs of both sides. It is an
assisted negotiation and an informal process in which parties are aided by a third
impartial person, who is the mediator, possessing specialized skills, requisite
training and sufficient experience necessary to assist the disputed parties for
reaching a negotiated settlement.

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If the role of the ‘conciliator’ in India is pro-active and interventionist as stated
above, the role of the ‘mediator’ must necessarily be restricted to that of a
‘facilitator’.

In their celebrated book ‘ADR Principles and Practice’ by Henry J. Brown and Arthur
L. Mariot (1997, 2nd Ed. Sweet & Maxwell, Lord on Chapter 7, p 127), the authors
say that ‘mediation’ is 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. The mediator has no authority to make any
decisions that are binding on them, but uses certain procedures, techniques and
skills to help them to negotiate an agreed resolution of their dispute without
adjudication.”

In yet another leading book on ‘Dispute Resolution’ (Negotiation, Mediation and

other processes’ by Stephen B. Goldberg, Frank E.A. Sander and Nancy H. Rogers
(1999, 3rd Ed. Aspine Law & Business, Gaithesburg and New York)(Ch. 3, p. 123), it
is stated as follows:

“Mediation is negotiation carried out with the assistance of a third party. The
mediator, in contrast to the arbitrator or judge, has no power to impose an
outcome on disputing parties. Despite the lack of ‘teeth’ in the mediation process,
the involvement of a mediator alters the dynamics of negotiations. Depending on
what seems to be impeding (an) agreement, the mediator may attempt to
encourage exchange of information, provide new information, help the parties to
understand each others’ views, let them know that their concerns are understood;
promote a productive level of emotional expression; deal with differences in
perceptions and interest between negotiations and constituents (including lawyer
and client); help negotiators realistically, assess alternatives to settlement, learn
(often in separate sessions with each party) about those interest the parties are
reluctant to disclose to each other and invent solutions that meet the fundamental
interests of all parties.

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Prof. Robert Baruch Bush and Prof. Joseph Folgen (ibid, p 136) say: “In a
transformative approach to mediation, mediating persons consciously try to avoid
shaping issues, proposals or terms of settlement, or even pushing for the
achievement of settlement at all. Instead, they encourage parties to define
problems and find solutions for themselves and they endorse and support the
parties’ own efforts to do so.”

The meaning of these words as understood in India appears to be similar to the

way they are understood in UK. In the recent Discussion Paper by the lord
Chancellor’s Department on Alternative Dispute Resolution
(http://www.lcd.gov.uk/Consult/cir-just/adi/annexald/htm) (Annexure A), where
while defining ‘Mediation’ and ‘Conciliation’, it is stated that ‘Mediation’ is a way
of settling disputes by a third party who helps both sides to come to an agreement,
which each considers acceptable. Mediation can be ‘evaluative’ or ‘facilitative’.
‘Conciliation’, it is said, is a procedure like mediation but the third party, the
conciliator, takes a more interventionist role in bringing the two parties together
and in suggesting possible solutions to help achieve a settlement. But it is also
stated that the term ‘conciliation’ is gradually falling into disuse and a process
which is pro-active is also being regarded as a form of mediation. (This has already
happened in USA).

The above discussion shows that the ‘mediator’ is a facilitator and does not have a
pro-active role. (But, as shown below, these words are differently understood in
US).

Role of the mediator

The role of the mediator is only to assist the parties. He does not have to decide
who is right or wrong and also does not have authority to impose a settlement on
the parties. Instead, it provides a forum for principled negotiations. Parties come
to recognise their true rights and needs, instead of reiteration of their rights and
they also come to realise that solution can be reached by satisfying each other’s
needs.

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It is often said that mediation is the best way of imparting justice through self-
mediation of the parties. Mediator empowers the parties to communicate and
decide the outcome on their own by providing various options suitable as per the
dispute and has to think of alternative solutions favouring a mix of benefits to both
parties.

In brief, Mediation is all about facilitating or assisting negotiation between the

parties. Mediation works between the parties because it gives chance to the parties
to come to a settlement where both parties do not have to compromise their rights
instead leads to a better solution.

Growth of mediation centres in India and Its impact on ADR mechanism

In India, mediation as a mode of ADR mechanism has been accepted in its

fundamental and generic form. It has been widely utilized in Delhi, which has
indeed been one of the pioneers in institutionalizing mediation. In India, mediation
got legislative recognition for the first time in 1947, through Industrial Disputes
Act,1947. The enactment of section 89 of CPC was focused by the judiciary to
popularize and propagate mediation as an ADR mechanism.

In furtherance of this, the judiciary also prepared a “National Plan for Mediated
Settlement of Dispute” for developing training of mediators, development of
mediation manuals, setting up of mediation centres in court complexes and
spreading awareness about mediation against litigants so as to popularize
mediation.[4]

Also, various mediation centres have been established in Delhi for resolution of
disputes in pending cases. The growth of mediation centres in Delhi can be seen
through the institutional as well as ad-hoc private mediation in Delhi which is
always available and open for the parties to take recourse to mediation for
settlement of their disputes outside the court-annexed mediation centres before
they invoke the jurisdiction of courts.

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There are various institutions available in Delhi offering professional mediation
services at the pre-litigation as well as the post-litigation stage. The Indian
Legislature also enacted The Legal Services Authority Act, 1987 by constituting
National Legal Service Authority as a central authority vesting with various duties
like encouraging for the settlement of disputes by way of negotiation, arbitration
and conciliation, etc.

Court-annexed mediation

When the cases are solved with the help of court accredited mediators, that is often
referred to as court-annexed mediation. The mediation services are viewed as part
and parcel of the same judicial system, instead of a separate court-referred
mediation, where court refer the cases to private mediators so that no one would
feel that the case is separated from the court system. ADR services under the
control and guidance of judicial system would ensure smooth functioning,
authenticity and acceptance from the public. It would ensure the mediation in
coordination with the courts and not be viewed as competition to the courts.

How mediation is helpful for the courts?

With the cooperation of mediation services, courts can easily refer the cases to
mediators and deal with the cases which are more important for public matter
without wasting time on small petty cases, which can ensure in reducing the loads
and pending of cases at a manageable level. And also, the mediators will have a
positive feeling from the support of the judges and make the process more
expeditious and harmonized. It would lead to faster settlements and public
confidence and would ensure a feeling that the mediation is working hand in hand
with the same system.

This is not as easy as we think because the general public is not always willing to
accept the new change about which they are not properly aware of. It is a new idea
which is introduced in India and we cannot in any circumstance expect from the

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public to adapt to the new change quickly. Here arises the problem for court
annexed-mediation.

Obstacles in the implementation of this mechanism

 The unavailability of sufficient funds to introduce this machinery in the

country.
 Second, in a country like India, where we have an established judicial
system the court is seen as the place to go when disputes arise and cannot
be viewed as a mechanism where it can be sorted out by the parties
themselves.[5]

Thus, the public at large refuses to accept where the court is not directly involved.
They only accept when they see that it has the stamp of approval of the court
because then they do not have any fear as they are already accustomed to the court
system.

Why you should choose mediation?

Mediation is confidential, non-binding and parties get to choose an alternative

provided by the mediator. The mediator guides for reaching an amicable solution
for both the parties. No strict procedures are followed by the parties which makes
the whole proceedings more informal and comfortable.

Why is ADR preferred more than litigation?

ADR has gained a rapid popularity over the years. The business disputes are
resolved more by the arbitration process than the litigation. The reason for
acceptance of arbitration over litigation is due to many reasons.

1. Arbitration is more cost-effective. The cost of the process involved in the

dispute is much less than the cost involved in the litigation.

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 2. The process is more informal as compared to the litigation process. There
are no lengthy procedures as that is present in the court.
3. ADR process is flexible. The parties can withdraw their case anytime they
want which, is not possible in the court process.
4. The dispute is resolved more quickly with the assistance of a third person,
who advises the parties according to their needs and suitability. This is not
same in the case of the court process. The judges do not give judgment
according to the suitability of the parties.
5. The resolution of the dispute is made faster. On the other hand, filing
cases in the court take years and years to resolve one case.
6. In ADR, an approach is made to balance the interest of both the parties.
Whereas, in the litigation, the other party loses the case.
7. Discussions of the proceedings in ADR are confidential and no public
record is to be maintained. The discussions in the court involve knowledge
of the public.
8. The venue and schedule are according to the convenience of the parties
as they have the power to choose the arbitrator, the place of the
proceedings etc.

How arbitration, mediation and conciliation are different from each

other?

Mediation and conciliation both are an informal process. Whereas, arbitration is

more formal as compared to them. In mediation, the mediator generally sets out
alternatives for the parties to reach out an agreement. The main advantage of the
mediation is that the settlement is made by the parties themselves rather than a
third party. It is not legally binding on the parties.

Arbitration is a process where the parties submit their case to a neutral third party
who on the basis of discussion determines the dispute and comes to a solution.

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Dispute resolution through conciliation involves the assistance of a neutral third
party who plays an advisory role in reaching an agreement. The process adopted
by all the three is different but, the main purpose is to resolve the dispute in a way
where the interest of the parties is balanced.

Difference between Mediation and Conciliation

The basic difference between mediation and conciliation is based on the role
played by the third party who is selected by the parties seeking a settlement, in
consensus. In mediation, the mediator acts as a facilitator who helps the parties in
agreeing. Conversely, in conciliation, the conciliator is more like an interventionist
who provides probable solutions to the parties concerned, to settle disputes.

Alternate Dispute Resolution (ADR) is a dispute resolution method that employs

non-adversarial (i.e. out of court) ways to adjudicate legal controversies. ADR
methods are informal, cheaper and faster, in comparison to the traditional
litigation process. It includes arbitration, conciliation, mediation and negotiation.

Many think that conciliation and mediation are one and the same thing, but they
are different, as they are governed by different acts.

Comparison Chart

BASIS FOR
MEDIATION CONCILIATION
COMPARISON

Meaning Mediation is a process of resolving Conciliation is a alternate dispute resolution

issues between parties wherein a method in which an expert is appointed to
third party assist them in arriving at settle the dispute by persuading parties to
an agreement. reach agreement.

Regulated by Code of Civil Procedure, 1908 Arbitration and Conciliation Act, 1996

Basic element Confidentiality, that depends on Confidentiality, whose extent is fixed by

trust. law.

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 BASIS FOR
MEDIATION CONCILIATION
COMPARISON

Third Party Acts as facilitator. Acts as facilitator, evaluator and intervener.

Result Agreement between parties Settlement agreement

Agreement It is enforceable by law. It is executable as decree of civil court.

Key Differences between Mediation and Conciliation

The differences between mediation and conciliation are discussed below in detail:

1. The process of dispute resolution in which a third party intervenes in an

attempt to resolve it, by enabling communication between parties is called
mediation. On the other hand, conciliation implies a process of settling the
dispute between the parties, in which a neutral third party provides
potential solutions to the parties so as to resolve the issue.
2. Mediation is governed by Code of Civil Procedure Act, 1908. Conversely,
Arbitration and Conciliation Act, 1996 regulates conciliation.
3. Both mediation and conciliation are premised on confidentiality. However,
in mediation, confidentiality relies on the trust and in conciliation, the law
determines the extent of confidentiality.
4. In mediation, the role of the third party is a facilitator, who facilitates
interaction between the parties. As against, in conciliation, the role played
by the third party is beyond facilitator, who not only facilitate
communication but also provide solutions to their problem as an expert.
5. Mediation process completes with an agreement between the parties
concerned, whereas conciliation ends with a settlement agreement
between the parties.

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 6. The contract of agreement between the parties under mediation is
enforceable by law. On the contrary, the settlement agreement between
the parties is binding upon parties like an arbitral award.

Objectives and Similarities

Both conciliation and mediation seek to find out the disputed issues and solutions
for the same.

These are are non-judicial, non-adversarial process, wherein the parties seek a
solution to their issue rather than competing against each other. These are
voluntary in nature, i.e. both parties should agree to mediate or conciliate the
dispute.

Conclusion
To sum up, it is evident from the above discussion that the role played by the
third party differs the two form of alternate dispute resolution. While conciliator
gives suggestions and advice on the issue for resolving the dispute between the
parties, as he/she is an expert in that domain. Mediator on the other hand only
facilitates communication and develop understanding. No advisory role is played
by the mediator.

There is a growing concern as regards the interventionist stance adopted by the

Courts with respect to arbitration. The business community as well as the legal
fraternity has time and again hinted at the need for the courts to re-look at the way
arbitration is perceived to make it an effective alternative remedy.

The Supreme Court has assumed a proactive role while dealing with ADR and went
to the extent of setting out the way courts should approach/recommend the ADR
methods to litigants under Section 89.

It is therefore heartening to see the trend evinced by the various Supreme Court
decisions cited earlier which point towards a more conducive approach being
adopted by the courts with respect to mediation and conciliation. The two can be
seen to be gaining momentum thereby making the ADR system in the country an
effective means of tackling the problem of arrears.

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Though mediation and conciliation are both effective. However if the question was
what is it that they are effective in doing, the answer we would reach at would be
quite different. Conciliation attempts to come to a workable settlement where
mediation helps resolve issues and helps people build and mend relationships.

Arbitration, mediation and conciliation are considered as the main alternative

dispute resolution mechanism to litigation. Business people prefer these
mechanisms more convenient because it does not require a lot of lengthy
procedures like courts. Here, dispute resolution is more informal as compared to
litigation in courts. Over the recent years, they have turned out to be more effective
than the litigation process. Access to justice is there without the involvement of the
court. Parties are more comfortable as they can freely express their own views,
needs and interest.

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References

[1] Halsbury’s Laws of England para 501 (vol.2, 4th edition).

[2] Inserted by the Code of Civil Procedure (amendment) Act, 1999.

[3] DK Sampath, Mediation 8 (NLSUI, 1991).

[4] Justice K.G. Balakrishnan, former Chief Justice of India (Law Day address to the
Nation on November 25, 2008).

[5] Sriram Panchu, Mediation Practice and Law, The path to successful dispute
resolution, 255.

[6] https://www.tpsgc-pwgsc.gc.ca/gcc-bdm/differences-eng.html

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