“MEDIATION”

PROPOSAL SUBMITTED IN FULFILMENT OF THE COURSE TITLED

ALTERNATIVE DISPUTE RESOLITION FOR OBTAINING THE DEGREE B.A.,LL.B.
(HONS.) DURING THE ACADEMIC YEAR 2021-22.

Submitted by: Submitted to:

SAJAL SANATAN MR. RISHIKESH

MANU

Roll No-2149 Assistant Professor of

Law

6th Semester

March, 2022

Chanakya National Law University,

Nyaya Nagar, Mithapur, Patna , 800001

 DECLERATION

I, SAJAL SANATAN, student of Chanakya National Law University hereby declare that the
work reported in the B.A.,LL.B.(HONS.) project report entitled: MEDIATION submitted at
Chanakya National Law University, Patna is an authentic record of my work carried out
under the supervision of MR. RISHIKESH MANU. I have not submitted this work
elsewhere for any other degree or diploma. I am responsible for the contents of my Project
Report.

NAME: SAJAL SANATAN

ROLL NO: 2149

COURSE: B.A.,LL.B. (Hons.)

SEMESTER: 2021-2022 (6th)

SESSION: 2019-2024

ACKNOWLEDGEMENT

I would like to thank my faculty MR. RISHIKESH MANU whose guidance helped me a lot
with structuring of my project. I take this opportunity to express my deep sense of gratitude
for his guidance and encouragement which sustained my efforts on all stages of this project.

I owe the present accomplishment of my project to my friends, who helped me immensely

with materials throughout the project and without whom I couldn’t have completed it in the
present way.

I would also like to extend my gratitude to my parents and all those unseen hands that helped
me out at every stage of my project.

THANK YOU

NAME: SAJAL SANATAN

ROLL NO: 2149

COURSE: B.A.,LL.B. (Hons.)

SEMESTER: 2021-2022 (6th)

SESSION: 2019-2024

TABLE OF CONTENT

1) INTRODUCTION
2) HISTORICAL BACKGROUND OF MEDIATION AND ITS TYPES
3) CHARECTERSTICS OF MEDIATION
4) PROCESS OF MEDIATION
5) LEGAL ASPECT OF MEDIATION
6) CONCLUSION AND SUGGESTION
7) BIBLIOGRAPHY
 INTRODUCTION

Alternative dispute resolution (ADR) is a process, or a collection of processes, that affords

people the opportunity to resolve legal disputes without having to resort to litigation. ADR
is designed to be an alternative to (though not necessarily a substitute for) resolving a legal
dispute through the civil litigation process.

Mediation is an ADR process in which a neutral third party, called a mediator, meets with
the disputing parties in an attempt to help them reach an agreement that ends their conflict.
Mediators are typically trained professionals – often attorneys – who provide the disputing
sides a neutral place in which to meet, discuss their problem, and try to resolve their
differences. As with arbitrators, state rules determine who can serve as a mediator.

Mediators may arrange joint meetings, meet with the disputing parties individually, suggest
potential solutions, provide a structured way to negotiate a settlement, or give advice and
guidance – but they do not impose solutions or forcibly resolve the conflict. In mediation,
you and the other party are responsible for reaching an agreement. Unlike arbitration, your
role in mediation is not to try to persuade the mediator, but to try to reach an outcome you
and the other disputing party find acceptable.

Mediation is less formal than litigation or arbitration. While there are often basic rules or
procedures involved in mediation, you and the other party are allowed to reach your own
agreements. Also, mediation, unlike arbitration, is always nonbinding. This means that the
disputing parties, even though they agree to attend mediation, do not have to agree to any
proposed solution, nor do they have to agree to continue mediation if they do not want to.
So if you agree to mediation, your mediator might suggest a solution or offer opinions on
what you should or should not do – but you cannot be forced to continue to attend the
mediation process, or to agree to any resolution.
Mediation is another of the methods of alternative dispute resolution (ADR) available to
parties. Mediation is essentially a negotiation facilitated by a neutral third party. Unlike
arbitration, which is a process of ADR somewhat similar to trial, mediation doesn't involve
decision making by the neutral third party. ADR procedures can be initiated by the parties or
may be compelled by legislation, the courts, or contractual terms.

Is Mediation effective to the parties?

When parties are unwilling or unable to resolve a dispute, one good option is to turn to
mediation. Mediation is generally a short-term, structured, task-oriented, and "hands-on"
process.

In mediation, the disputing parties work with a neutral third party, the mediator, to resolve
their disputes. The mediator facilitates the resolution of the parties' disputes by supervising
the exchange of information and the bargaining process. The mediator helps the parties find
common ground and deal with unrealistic expectations. He or she may also offer creative
solutions and assist in drafting a final settlement. The role of the mediator is to interpret
concerns, relay information between the parties, frame issues, and define the problems.

When to Mediate

Mediation is usually a voluntary process, although sometimes statutes, rules, or court orders
may require participation in mediation. Mediation is common in small claims courts, housing
courts, family courts, and some criminal court programs and neighborhood justice centers.

Unlike the litigation process, where a neutral third party (usually a judge) imposes a decision
over the matter, the parties and their mediator ordinarily control the mediation process --
deciding when and where the mediation takes place, who will be present, how the mediation
will be paid for, and how the mediator will interact with the parties.

After a Mediation

If a resolution is reached, mediation agreements may be oral or written, and content varies
with the type of mediation. Whether a mediation agreement is binding depends on the law in
the individual jurisdictions, but most mediation agreements are considered enforceable
contracts. In some court-ordered mediations, the agreement becomes a court judgment. If an
agreement is not reached, however, the parties may decide to pursue their claims in other
forums.

The mediation process is generally considered more prompt, inexpensive, and procedurally
simple than formal litigation. It allows the parties to focus on the underlying circumstances
that contributed to the dispute, rather than on narrow legal issues. The mediation process does
not focus on truth or fault. Questions of which party is right or wrong are generally less
important than the issue of how the problem can be resolved. Disputing parties who are
seeking vindication of their rights or a determination of fault will not likely be satisfied with
the mediation process.

Aims and Objectives :

The Researcher aims to full fill below objectives through this project :

1. The main aim of this project is to study the term Mediation.

2. To study about the concept of Mediation in India.

Research Methodology :

The Researcher will be relying on Doctrinal method of research to complete this project.

Hypothesis :

1. The Researcher assumes that the MEDIATION is the best form of ADR

Sources of Data :

For this study, doctrinal research method was utilised. Various articles, and books
were used extensively in framing all the data and figures in appropriate form,
essential for this study.

Research Question :
1. What is MEDIATION
2. What are the advantage and characteristics of MEDIATION
 Method of Writing :

The method of writing followed in the course of this research paper is primarily analytical.

Limitation of the study :

The Researcher as a student has completed the project , he has access to a

limited area and having a limited time.

HISTORICAL BACKGROUND OF MEDIATION AND ITS TYPES

The use of mediation, as an Alternative Dispute Redrassal (ADR) mechanism dates back to
centuries before the British came to India. Back then informal panchayats were used to
resolve disputes between the parties where the respected elderlies of the villages or
the Mahajans were appointed as mediators. Till date, Panchas or Pancha Parmeshwars, as
neutral third parties, are used to settle disputes informally between the erring individuals or
groups, by some tribes in India. However, with the onset of the British colonialism, mediation
began to be recognized as a formal and legalized ADR mechanism. 

Mediation gained popularity as an ADR mechanism with the re-introduction of Lok Adalats
in the Indian Judicial system. Enacted in1987, the Legal Services Authority Act gave  a
statutory status to the Lok Adalts in India for the first time. Under this act, the decision of the
Lok Adalats have been awarded the same status as that of a civil court.

The terms 'mediation' and 'conciliation', whose usages were considered to be synonymous
previously, received significant distinctions in their usages when the Arbitration and
Conciliation Act was enacted in 1996. Not only did the act lay down a clear definition for
conciliation but also consolidated the laws relating to domestic arbitration in India. The
mediator, unlike the conciliator, does not take an active part in the mediation process and
thus, the terms cannot be used as a substitute for each other.

The development of mediation as an ADR mechanism can also be attributed to section 89 of

the Civil Procedure Code(CPC), 1908 which was inserted by the CPC (Amendment) Act,
1999 with prospective effect from 1/7/2002. This particular development was due to the
efforts of Hon'ble Mr. Justice A M Ahmadi. Ahmadi, the then Chief Justice of India, had
invited the Institute for the Study and Development of Legal System (ISDLS) to India for a
national legal exchange programme between India and the USA. The ISDLS examined the
problems of institutional backlogs in the Indian judicial system and suggested the ADR
mechanisms and legislalive and structural reforms of the laws relating to these mechanisms
following which, new reforms were introduced in 2002 in the form of amendment of section
89 of the CPC. However, the amendment was challenged by a group of lawyers following
which the Malimath Committee and the 129th Law Commission were constituted. In the light
of the reports submitted by the committees, the Hon'ble Supreme Court in the case of Salem
Advocates Bar Association vs. Union of India. made it mandatory for the courts to refer cases
to the alternative forums, if they were so pleased. This case is a landmark one in the
development of mediation in India. 

Since then, the judges of the Supreme Court have contributed significantly towards the
development of mediation as an ADR mechanism. Under Hon'ble Mr. Justice R C Lahoti, a
Mediation and Conciliation Committee was established and in a Project on Mediation was
also initiated in Delhi in the year 2005. In the same year, A Permanent Mediation Centre was
inaugurated at the Tis Hazari court complex and judicial mediation was started at the
Karkardooma court complex. Two mediation centres were also inaugurated, one at the
Karkardooma court complex in Delhi and another at the Patiala court in 2015.cant

Thus, mediation as an Alterantive Dispute Redrassal mechanism, has received significant

impetus over the years through the enactment of various legislations and by the efforts of
various judges of the Supreme Court.

Types of MEDIATION :

Facilitative mediation – The mediators attempt to facilitate discussion and negotiation

between the disputing parties. They do not make any suggestions, or propose any solutions to
the parties; instead, they encourage them to collaborate and to reach a mutually-beneficial
solution that suits each other’s interests and needs .

In India, facilitative mediation is the most common type of mediation used by mediators.

Evaluative mediation – The mediator is more directly and actively involved in this type of
mediation, than in facilitative mediation. In this type, mediators tend to express their own
opinions regarding the dispute and are likely to make recommendations. Rather than focusing
on underlying interests, such mediation may also involve assessment of the parties’ legal
position.

In India, features of evaluative mediation are usually seen in the process of conciliation,
under the Arbitration and Conciliation Act, 1996.

Court-Mandate Mediation - In spite of the fact that mediation is regularly characterized as a
totally deliberate procedure, it very well may be commanded by a court that is keen on
advancing a rapid and cost-productive settlement. At the point when parties and their lawyers
are hesitant to take part in mediation, their chances of settling through court-mandate
mediation are low, as they may simply be making a halfhearted effort. But, when parties on
both the sides see the advantages of participating in the process, settlement rates are much
higher.

Transformative Mediation - In transformative mediation, mediators focus on engaging and

empowering disputants to resolve their conflict and urging them to perceive each other's
needs and interests. First described by Robert A. Baruch Bush and Joseph P. Folger in their
1994 book The Promise of Mediation, transformative mediation is established in the custom
of facilitative mediation. At its generally yearning, the procedure intends to change the
parties and their relationship through the way toward procuring the abilities they have to roll
out useful improvement.
 CHARECTERSTICS OF MEDIATION

If the advantages of Mediation (or any other non-adjudicatory mode of dispute resolution) are
to be appreciated, it becomes pertinent to examine it in contrast to the traditional or
adversarial mechanism. However the same doesn’t imply that the litigation process has no
merit in itself at all. It all depends upon the context as to which mechanism is better, and
when the question is read in the context of dispute settlement, mediation stands out.

1. COST EFFECTIVE AND EXPEDITIOUS RESOLUTION

Mediation offers an ADR mechanism for cost effective and expeditious resolution of
disputes.1 The object of mediation is amicable dispute resolution and hence the costs
involved are minimal in comparison to arbitration or litigation. The parties are also
able to save on lawyer’s fee and court fee. The mediation process is quite simple and
there are neither any procedural fetters nor any legal claptrap in the mediation
process. The procedural flexibility, avoidance of legal formalities and proficient
assistance by the mediator in steering the parties to an amicable resolution, result in
speedier dispute resolution. Moreover once a settlement is reached the dispute stands
finally resolved thereby obviating the possibility of successive appeals thereby
minimizing the costs and delay.

2. CREATIVE SOLUTIONS

Mediation enables the parties to devise creative, tailor made solutions for their
disputes taking into account the needs, aspirations and interests of the parties which
may not be possible in case of litigation or arbitration. The parties themselves retain
full control of the mediation process and are free to determine their own solutions.
They are at liberty to settle all disputes to suit their requirements. The hallmark of
mediation is therefore its capacity to help the parties expand traditional settlement

1
James Melamed, “A View of Mediation in the Future”, 1(8) The Indian Arbitrator 6 (September 2009).
 discussions and broaden resolution options, often by going beyond the legal issues in
controversy.2 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 It is the most
appropriate ADR mechanism in case of complex and multifaceted disputes as such
disputes often require novel broad based solutions rather than a straightforward legal
adjudication.

3. 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 3 as the final outcome is arrived at with
the consent of both the parties and leaves both the parties satisfied. 4 The beauty of the
process is that, unlike in litigation or arbitration, neither party looses in mediation and
in fact both emerge as winners. This also promotes compliance and more durable
settlements. 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.

4. PRESERVATION 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.5

2
Elizabeth Plapinger & Donna Stienstra, ADR and Settlement in the Federal District Courts: A Sourcebook for
Judges and Lawyers available at: as the final outcome is arrived at with the consent of both the parties and
leaves both http://www.fjc.gov (last visited on 01.04.2018).
3
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).
4
Joseph B. Stulberg, “Mediation and Justice: What standards Govern?” 6 Cardozo J. Conflict Resol. 213
(2005).
5
 Mediation affords an opportunity to communicate, participate and collaborate with the
opposite party and understand each-others’ interests in a cool, composed and amiable
atmosphere. It focuses on long-term interests and bonding, fosters amity and
friendship6 and promotes peace, harmony and everlasting relationships amongst the
parties. Mediation is therefore very promising in continuing relationship cases. Since
both parties emerge as winners, relations are preserved between the parties for times
to come.

5. CONFIDENTIALITY

Mediation is a closed door private affair and the prime advantage associated with
mediation is confidentiality. Unlike court proceedings third parties do not have access
to mediation proceedings. The mediator7

Mediation is confidential whether or not it results in the settlement and resolution of

the dispute. and the parties are also supposed to keep confidential, all matters relating
to the mediation proceedings. Even during the proceedings when one party gives
information to the mediator subject to a specific condition that it is to be kept
confidential, the mediator is precluded from disclosing that information to the other
party.8 In case mediation is unsuccessful, what transpired in the mediation
proceedings is not to be disclosed. This is despite the fact that confidentiality in
mediation has no statutory backing9 because the process of mediation is inherently
considered to be confidential. In case of court annexed mediation conducted by the
mediation centres at Delhi also, confidentiality has been accorded due importance.10

The courts have also emphasized upon the aspect of confidentiality in mediation
proceedings. In Moti Ram v. Ashok Kumar, 11 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
6

7
A mediator is bound to maintain confidentiality both internally and externally. See Michael Moffitt, “Ten
Ways to get Sued: A Guide for Mediators”, 8 Harv. Negot. L. Rev. 81 (Spring 2003).
8
Ashwanie Kumar Bansal, Arbitration and ADR 19 (Universal Law Publishing Co. Pvt. Ltd., Delhi, 2005).
9
There is no statutory provision like s. 75, Arbitration and Conciliation Act, 1996 which affords confidentiality
in mediation as a statutory guarantee.
10
Rule 20, Mediation and Conciliation Rules, 2004 (Delhi) provides for confidentiality in mediation
proceedings; Rule 22, Mediation and Conciliation Rules, 2004 (Delhi)
11
 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….”.

PROCESS OF MEDIATION

The functional stages of the mediation process are:

1) Introduction and Opening Statement

2) Joint Session

3) Separate Session(s)

4) Closing

STAGE 1: INTRODUCTION AND OPENING STATEMENT

Objectives

• Establish neutrality

• Create an awareness and understanding of the process

• Develop rapport with the parties

• Gain confidence and trust of the parties

• Establish an environment that is conducive to constructive negotiations

• Motivate the parties for an amicable settlement of the dispute

• Establish control over the process

Seating Arrangement in the Mediation Room

At the commencement of the mediation process, the mediator shall ensure that the parties
and/or their counsel are present.
There is no specific or prescribed seating arrangement. However, it is important that the
seating arrangement takes care of the following:

• The mediator can have eye-contact with all the parties and he can facilitate effective
communication between the parties.

• Each of the parties and his counsel are seated together.

• All persons present feel at ease, safe and comfortable

Introduction

• To begin with, the mediator introduces himself by giving information such as his name,
areas of specialization if any, and number of years of professional experience.

• Then he furnishes information about his appointment as mediator, the assignment of the
case to him for mediation and his experience if any in successfully mediating similar cases in
the past.

• Then the mediator declares that he has no connection with either of the parties and he has
no interest in the dispute.

• He also expresses hope that the dispute would be amicably resolved. This will create
confidence in the parties about the mediator's competence and impartiality.

• Thereafter, the mediator requests each party to introduce himself. He may elicit more
information about the parties' and may freely interact with them to put them at ease.

• The mediator will then request the counsel to introduce themselves.

• The mediator will then confirm that the necessary parties are present with authority to
negotiate and make settlement decisions

• The mediator will discuss with the parties and their counsel any time constraints or
scheduling issues

• If any junior counsel is present, the mediator will elicit information about the senior
advocate he is working for and ensure that he is authorized to represent the client.
The Mediator's Opening Statement

The opening statement is an important phase of the mediation process. The mediator explains
in a language and manner understood by the parties and their counsel, the following:

• Concept and process of mediation

• Stages of mediation

• Role of the mediator

• Role of advocates

• Role of parties

• Advantages of mediation

• Ground rules of mediation

The mediator shall highlight the following important aspects of mediation:

• Voluntary

• Self-determinative

• Non-adjudicatory

• Confidential

• Good-faith participation

• Time-bound

• Informal and flexible

• Direct and active participation of parties

• Party-centred

• Neutrality and impartiality of mediator

• Finality

• Possibility of settling related disputes

• Need and relevance of separate sessions

The mediator shall explain the following ground rules of mediation:

• Ordinarily, the parties/counsel may address only the mediator

• While one person is speaking, others may refrain from interrupting

• Language used may always be polite and respectful

• Mutual respect and respect for the process may be maintained

• Mobile phones may be switched off

• Adequate opportunity may be given to all parties to present their views

Finally, the mediator shall confirm that the parties have understood the mediation process and
the ground rules and shall give them an opportunity to get their doubts if any, clarified.

STAGE 2: JOINT SESSION

Objectives

• Gather information

• Provide opportunity to the parties to hear the perspectives of the other parties

• Understand perspectives, relationships and feelings

• Understand facts and the issues

• Understand obstacles and possibilities

• Ensure that each participant feels heard

Procedure

• The mediator should invite parties to narrate their case, explain perspectives, vent emotions
and express feelings without interruption or challenge. First, the plaintiff/petitioner should be
permitted to explain or state his/her case/claim in his/her own words. Second, counsel would
thereafter present the case and state the legal issues involved in the case. Third, defendant/
respondent would thereafter explain his/her case/claim in his/ her own words. Fourth, counsel
for defendant/respondent would present the case and state the legal issues involved in the
case.

• The mediator should encourage and promote communication, and effectively manage
interruptions and outbursts by parties.

• The mediator may ask questions to elicit additional information when he finds that facts of
the case and perspectives have not been clearly identified and understood by all present.

• The mediator would then summarize the facts, as understood by him, to each of the parties
to demonstrate that the mediator has understood the case of both parties by having actively
listened to them.

• Parties may respond to points/positions conveyed by other parties and may, with
permission, ask brief questions to the other parties.

• The mediator shall identify the areas of agreement and disagreement between the parties
and the issues to be resolved.

• The mediator should be in control of the proceedings and must ensure that parties do not
'take over' the session by aggressive behaviour, interruptions or any other similar conduct.

• During or on completion of the joint session, the mediator may separately meet each party
with his counsel, usually starting with the plaintiff/petitioner. The timing of holding the
separate session may be decided by the mediator at his discretion having regard to the
productivity of the on-going joint session, silence of the parties, loss of control, parties
becoming repetitive or request by any of the parties. There can be several separate sessions.
The mediator could revert back to a joint session at any stage of the process if he feels the
need to do so.

STAGE 3: SEPARATE SESSION

Objectives

• Understand the dispute at a deeper level

• Provide a forum for parties to further vent their emotions

• Provide a forum for parties to disclose confidential information which they do not wish to
share with other parties

• Understand the underlying interests of the parties

• Help parties to realistically understand the case

• Shift parties to a solution-finding mood

• Encourage parties to generate options and find terms that are mutually acceptable

STAGE 4: CLOSING
(A) Where there is a settlement

• Once the parties have agreed upon the terms of settlement, the parties and their advocates
re-assemble and the mediator ensures that the following steps are taken:

1. Mediator orally confirms the terms of settlement;

2. Such terms of settlement are reduced to writing;

3. The agreement is signed by all parties to the agreement and the counsel if any representing
the parties;

4. Mediator also may affix his signature on the signed agreement, certifying that the
agreement was signed in his/her presence;

5. A copy of the signed agreement is furnished to the parties;

6. The original signed agreement sent to the referral Court for passing appropriate order in
accordance with the agreement;

7. As far as practicable the parties agree upon a date for appearance in court and such date is
intimated to the court by the mediator;

8. The mediator thanks the parties for their participation in the mediation and, congratulates
all parties for reaching a settlement.

• THE WRITTEN AGREEMENT SHOULD:

 Be clearly specify all material terms agreed to;

 Be drafted in plain, precise and unambiguous language;
  Be concise;
 Use active voice, as far as possible. Should state clearly WHO WILL DO, WHAT,
WHEN, WHERE and HOW (passive voice does not clearly identify who has an
obligation to perform a task pursuant to the agreement);
 Use language and expression which ensure that neither of the parties feels that he or
she has 'lost';
 Ensure that the terms of the agreement are executable in accordance with law;
 Be complete in its recitation of the terms;
 Avoid legal jargon, as far as possible use the words and expressions used by the
parties;
 As far as possible state in positive language what each parties agrees to do;
 As far as possible, avoid ambiguous words like reasonable, soon, co-operative,
frequent etc;

(B) Where there is no settlement

• If a settlement between the parties could not be reached, the case would be returned to the
referral Court merely reporting "not settled". The report will not assign any reason for non
settlement or fix responsibility on any one for the non-settlement. The statements made
during the mediation will remain confidential and should not be disclosed by any party or
advocate or mediator to the Court or to anybody else.

• The mediator should, in a closing statement, thank the parties and their counsel for their
participation and efforts for settlement.
 LEGAL ASPECT OF MEDIATION

Section 89 of the Code of Civil Procedure, 1908 deals with reference of disputes to mediation
at the post litigative stage. Interestingly section 89(2) of the Code of Civil Procedure, 1908
provides that in case of reference of any sub judice matter to mediation the court shall effect a
compromise between the parties and shall follow such procedure as may be prescribed. This
again is something which is contrary to the general concept of mediation as mediation is a
private dispute settlement procedure de hors the judicial process. On the contrary, section 89
of the Code of Civil Procedure, 1908 further provides that in case of judicial settlement the
court shall refer the matter to any person or institution which shall be deemed to be a Lok
Adalat.12

This issue was considered by the Supreme Court of India in the year 2010 13 and the Supreme
Court acknowledged the fact that there is an error in the provision and opined that a proper
interpretation of section 89 of the Code of Civil Procedure, 1908 requires a change from a
plain and literal reading of the section and the definitions of `judicial settlement' and
`mediation' in clauses (c) and (d) of section 89(2) shall have to be interchanged to correct the
draftsman's error.

Clauses (c) and (d) of section 89(2) of the Civil Procedure Code, 1908 now read as under
when the two terms are interchanged14

Thus after the judgment of the Supreme Court in Afcons Infrastructure mediation has been
assigned its usual meaning. Mediation now contemplates reference of the dispute to any
person or institution. The matter in Delhi is normally referred to the court annexed mediation
12
Section 89 (2), Code of Civil Procedure, 1908 provides that: “...(c) for judicial settlement, the Court shall refer
the same to a suitable institution or person and such institution
13
14
In view of the directions issued in Afcons Infrastructure Ltd. v. Cherian Varkey Construction Co. (P) Ltd., JT
2010 (7) SC 616 the above changes made by interpretative process are to remain in force till the legislature
corrects the mistakes, so that section 89 CPC is not rendered meaningless and infructuous.
centres and thereafter the matter is assigned: (c) for "mediation", the court shall refer the
same to a suitable institution or person and such institution or person shall be deemed to be a
Lok Adalat and all the provisions of the Legal Services Authority Act, 1987 (39 of 1987)
shall apply as if the dispute were referred to a Lok Adalat under the provisions of that Act;
(d) for "judicial settlement", the court shall effect a compromise between the parties and shall
follow such procedure as may be prescribed. Thus after the judgment of the Supreme Court in
Afcons Infrastructure mediation has been assigned its usual meaning. Mediation now
contemplates reference of the dispute to any person or institution. The matter in Delhi is
normally referred to the court annexed mediation centres and thereafter the matter is
assigned15 to a particular trained mediator, who conducts mediation proceedings.

But the most significant change which the Afcons judgment has brought about is that such
person or institution conducting mediation is now to be deemed as a Lok Adalat and the
provisions of the Legal Services Authorities Act, 1987 would be applicable. The necessary
concomitant is that the settlement agreement certified by the mediator would be deemed to be
an award of the Lok Adalat and would in turn be enforceable as a decree of the court.16

Interestingly even before the Afcons judgment the High Court of Delhi 17 had held that parties
are estopped from withdrawing from the settlement agreement arrived at before the
Mediation Centre and in such eventualities the court can dispose of the case on the basis of
the said settlement in terms of Order XXXIII Rule 3 CPC. 18 However, undoubtedly the
Afcons judgment lends tremendous support to the mediation movement by removing the
foremost disability associated with a mediation settlement and asserting the enforcement of a
mediation settlement agreement as decree of the court.

But the Afcons judgment applies only to post litigation court referred mediation in terms of
section 89 of the Code of Civil Procedure, 1908 and the fate of a pre litigation mediation
settlement or post litigation mediation settlement de hors section 89 of the Code of Civil
Procedure, 1908 still lingers in a quandary.

15
Such assignment of the matters is done by the Incharge, Mediation Centre.
16
Every award of the Lok Adalat is final and binding on all the parties to the dispute and enforceable as decree
of the court. See s. 21, Legal Services Authorities Act, 1987.
17
Modern Maintenance Services v. All India Fine Arts and Crafts Society, MANU/DE/3127/2009 (Delhi High
Court) and Naresh Chand Jain v. K.M. Tayal, MANU/DE/2014/2012 (Delhi High Court);
18
Sir Syed Memorial Educational Society v. Mohmmad Usman Wani, AIR 2000 J&K 67
 CONCLUSION AND SUGGESTION

Mediation in its contemporary incarnation is an ADR process involving negotiation

facilitated by a specially trained mediator through a structured process, has emerged as the
frontrunner in the ADR revolution which is gaining momentum in Delhi for realizing the
cherished dream of ‘access to justice’ for all.

The popularity of mediation is growing day by day in India as more and more people are
recognizing and acknowledging its utility and efficacy as a mode of dispute resolution. It is
because of its well-entrenched procedural advantages and its efficacy in the state of affairs
prevailing here, that no other ADR mechanism has received judicial endorsement and
recognition of the stature which mediation has received.

Mediation centres have been established all over the country under the aegis of the superior
judiciary for furthering the avowed objectives of section 89 CPC. It is a manifestation of the
government’s conscious endeavours of enhancing the efficacy of mediation as a mode of
dispute resolution and as these mediation centres gain momentum they would go a long way
in realizing the much desired societal objective of justice at doorsteps, in an expeditious and
cost effective manner through mediation.

A comprehensive legislation on mediation is much desired in this area and would not only
widen the horizons of mediation and add to its efficacy but would also encourage more
extensive use of mediation. Mediation has been a time tested dispute resolution mechanism
for decades in the west. The nature of litigation and other relevant circumstances in our
country may not be the same as they are there but we can certainly borrow their experience
which is quite rich by this time and suitably adapt the system to suit our requirements.

We need to channelize these experiences of the west into the mediation process and develop
the same in light of the socio-economic conditions prevailing here so as to create a sui generis
model of mediation that would be most apposite keeping in mind the imperative needs and
aspirations of our justice delivery system. However one thing is for sure that mediation is
here to stay and in fact it has become an indispensable part and parcel of the justice delivery
system. What is however required is constant evaluation, monitoring and a focused and well
guided endeavour for further improvement of the mediation movement.

BIBLIOGRAPHY

Statutes:

 Industrial Dispute Act, 1947.

 Code of Civil Procedure, 1908.
 Arbitration and Conciliation Act, 1996.
 Mediation and Conciliation Rules, 2004 (Delhi)
 Legal Services Authorities Act, 1987.

Books, Journals and Reports:

 Indu Malhotra, The Law and Practice of Arbitration, (Thomas Reuters, New Delhi,
3rd Edn., 2014).
 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).
 Joseph B. Stulberg, “Mediation and Justice: What standards Govern?” 6 Cardozo J.
Conflict Resol. 213 (2005).
 Michael Moffitt, “Ten Ways to get Sued: A Guide for Mediators”, 8 Harv. Negot. L.
Rev. 81 (Spring 2003).
 Tania Sourdin, “Matching Disputes to Dispute Resolution Processes – The
Australian Context”, in P.C. Rao and William Sheffield (Eds.), Alternative Dispute
Resolution 143 (Universal Law Publishing Company Pvt. Ltd., Delhi, 1997).