ALLAHABAD HIGHCOURT MEDIATION AND CONCILIATION CENTRE

INTERNSHIP REPORT

Name of the Intern Mr. Ankur Yadav

s/o Mr. Baburam Yadav

Student of B.A.LLB(HONS) VIII SEMESTER

at Iswar Saran Degree College,
University of Allahabad

On the following dates-

12/01/2023,13/01/2023,17/01/2023,18/01/2023,
19/01/2023,20/01/2023,22/01/2023
 ACKNOWLEDGEMENT

I would like to express immense gratitude towards the Chairman of the Allahabad High Court
Mediation and Conciliation Centre, for providing me with the “once in a lifetime” opportunity
of interning at this establishment of eminence and prestige. I would also like to thank the staff
of the A.H.C.M.C.C., who run the center at its full capacity in a seamless manner. Their hard
work and sheer dedication impart this place its positive environment. Finally, I would like to
thank my co-interns, who made these 7 days of my life, memorable and showered me with
valuable insights and inspiration.

ANKUR YADAV
B.A.LLB(HONS)
VIII-SEMESTER
 HISTORY OF MEDIATION
Abraham Lincoln had once said :

"discourage litigation, persuade your neighbours to compromise whenever you can. Point out
to them how the normal winner is often a loser in fees, expenses, cost and time"

The use of mediation, as an Alternative Dispute Redressal (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 Adalats 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
legislative 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.

Thus, mediation as an Alternative Dispute Redressal 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.

 status of mediation in India in the pre-Independence era

 development of mediation in India under various statutes
 recent developments in the field of mediation in India

HISTORY OF AHMCC
The Allahabad High Court Mediation and Conciliation Centre (AHMCC) was inaugurated on
6.10.2006 by Hon’ble Mr. Justice Markandey Katju. Hon’ble the Chief Justice has approved
the charter for functioning of the AHCMCC providing for Advisory Committee, Supervisory
Committee and Organising Committee and the manner in which the AHCMCC would
function providing the statutory basis. Hon’ble the Chief Justice is the Chief Patron of the
AHCMCC. So far the AHCMCC has functioned on the costs imposed by Hon’ble Courts.
The High Court has requested the AHCMCC to function under the aegis of State Legal
Services Authority with full functional autonomy. The first introductory mediation training
workshop was organized on 7th and 8th of October, 2006 conducted by Sriram Panchu,
Senior Advocate, Madras High Court and his associates Gita Rameshan and Aparna Vasu.
Mediation demonstration was performed by the trainers for the benefit of the trainees.
Further, the AHCMCC from time to time has organized training, advanced training,
workshops conducted by Sri Niranjan Bhatt, Senior Advocate, Gujrat High Court, Dr. Ajit
Narain Tripathi, former Professor, Banaras Hindu University and at present Co-ordinator of
the Malviya Centre for value studies, Sri Braja Bihari Dass, Hon’ble Ms. Justice Manju Goel
(Retd) Mr.A.S.Chandiok, Senior Advocate, Mr.J.P. Singh, Senior Advocate, Mr. Ram
Chandran, Advocate, Delhi High Court. Recently, 03 Senior Mediators of AHCMCC
attended a training session at Bangalore Mediation Centre which had been sponsored by the
Bangalore Mediation Centre along with the Foundation for Sustainable Rule of Law
Initiatives (FSRI of California, USA). The training was imparted by Rebecca Westerfield and
Bruce Edwards of the Judicial Arbitration and Mediation Services (JAMS) including Victor
Schechter, the President of FSRI and Partner in the law firm of Fenwick and West, LLP in
California in which while emphasis was placed on commercial mediation, other subject areas
were addressed as well.

BENEFITS OF MEDIATION
Mediation is:

• Quick and responsive.

• Economical.

• There is no extra cost.

• Harmonious settlement.

• Creating solutions and remedies.

• Confidential and informal.

• Parties controlling the proceedings.

The plaintiff is entitled to refund of full court fees as per Section 16 of the Court Fees Act,
1870 if the dispute is settled through the process of mediation.
 SECTION 89 OF CODE OF CIVIL PROCEDURE

“Settlement of disputes outside the Court —

(1) Where it appears to the Court that there exist elements of a settlement which may be
acceptable to the parties, the Court shall formulate the terms of settlement and give them to the
parties for their observations and after receiving the observations of the parties, the Court may
reformulate the terms of a possible settlement and refer the same for:– (a) Arbitration; (b)
Conciliation; (c) Judicial settlement including settlement through Lok Adalat: or (d) Mediation.

(2) were a dispute has been referred – (a) For arbitration or conciliation, the provisions of the
Arbitration and Conciliation Act, 1996 (26 of 1996) shall apply as if the proceedings for
arbitration or conciliation were referred for settlement under the provisions of that Act; (b) to
Lok Adalat, the Court shall refer the same to the Lok Adalat in accordance with the provisions
of sub-section (1) of Section 20 of the Legal Services Authority Act, 1987 (39 of 1987) and all
other provisions of that Act shall apply in respect of the dispute so referred to the Lok Adalat;
(c) for judicial settlement, 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 shall apply as if the dispute were referred to a Lok Adalat under
the provisions of that Act; (d) For mediation, the Court shall effect a compromise between the
parties and shall follow such procedure as may be prescribed.”

Order 10 Rule 1 CPC: allied provision to Section 89 CPC

The following extracts from Rules 1A, 1B, and 1C of Order X, CPC, which are related
provisions that were included by the same amending Act, are provided:

Order 10 Rule 1A

Rule 1A deals with the direction of the court to opt for any one mode of alternative dispute
resolution. In general terms, it states that it is in the power of the court to instruct the parties to
the lawsuit to choose one of the two methods of out-of-court settlement as described in
subsection (1) of Section 89 after recording the admissions and denials. Then, the court will set
the date of the parties’ presence before the forum or authority of their choice at their request.
Order 10 Rule 1B

Rule 1B deals with the appearance before the conciliatory forum or authorities. It states that
the parties must appear before the forum or authority for conciliation when a suit is referred
under Rule 1A.

Order 10 Rule 1C

Rule 1C deals with the appearance before the court consequent to the failure of efforts of
conciliation. It states that if a lawsuit is referred under Rule 1A and the forum or authority to
which the matter has been referred, determines that, further action would not be desirable in
the interest of justice, it shall re-refer the case to the court and order the parties to appear before
the court on the date set by it.

However, along with Section 89, these rules are also highly criticised. Therefore, in order to
correct this, in the year 2011, the Law Commission of India through its 238th Report made
suggestions for the amendment. It suggested the following amendments to the above mentioned
rules:

It is necessary to eliminate existing Rule 1B of Order 10 of the CPC. The following rules shall
be used in place of the current Rules 1A and 1C of Order 10:

“1A. Direction of the court to opt for any one mode of alternative dispute resolution. – At the
stage of framing issues or the first hearing of the suit, the court shall direct the parties to opt
either mode of the settlement outside the court as specified in sub-section (1) of section 89 and
for this purpose may require the parties to be personally present and in case of nonattendance
without substantial cause, follow the procedure for compelling the attendance of witness. The
court shall fix the date of appearance before such forum or authority or persons as may be opted
by the parties or chosen by the court.”

“1B Appearance before the court consequent upon the failure of efforts of conciliation. –
Where a suit is referred under rule 1A and the presiding officer of conciliation forum or
authority or the person to whom the matter has been referred is satisfied that it would not be
proper in the interest of justice to proceed with the matter further, in view of the stand taken by
the respective parties, it shall refer the case back to the court who shall direct the parties to
appear before it on the date fixed and proceed with the suit.”

ADR
Definition the process by which disputes between the parties are settled or brought to an
amicable result without the intervention of Judicial Institution and without any trail is known
as Alternative Dispute Resolution.

ADR offers to resolve all type of matters including civil, commercial, industrial and family
etc., where people are not being able to start any type of negotiation and reach the settlement.
Generally, ADR uses neutral third party who helps the parties to communicate, discuss the
differences and resolve the dispute. It is a method which enables individuals and group to
maintain co-operation, social order and provides opportunity to reduce hostility. Alternative
Dispute Resolution (ADR) Mechanisms ADR is a mechanism of dispute resolution that is non
adversarial, i.e. working together cooperatively to reach the best resolution for everyone. ADR
can be instrumental in reducing the burden of litigation on courts, while delivering a well-
rounded and satisfying experience for the parties involved. It provides the opportunity to
"expand the pie" through creative, collaborative bargaining, and fulfil the interests driving their
demands.

Importance of ADR in India

To deal with the situation of pendency of cases in courts of India, ADR plays a significant role
in India by its diverse techniques. Alternative Dispute Resolution mechanism provides
scientifically developed techniques to Indian judiciary which helps in reducing the burden on
the courts .

ADR provides various modes of settlement including, arbitration, conciliation, mediation,

negotiation and Lok Adalat. Here, negotiation means self-counselling between the parties to
resolve their dispute but it doesn’t have any statutory recognition in India. ADR is also founded
on such fundamental rights, article 14 and 21 which deals with equality before law and right to
life and personal liberty respectively. ADR’s motive is to provide social-economic and political
justice and maintain integrity in the society enshrined in the preamble. ADR also strive to
achieve equal justice and free legal aid provided under Article 39-A relating to Directive
Principle of State Policy (DPSP). ADR has proven successful in clearing the backlog of cases
in various levels of the judiciary – Lok Adalats alone have disposed more than 50 lakh cases
every year on average in the last three years. But there seems to be a lack of awareness about
the availability of these mechanisms.

ARBITRATION
Arbitration is outside the court settlement of a dispute by one or more (odd number) persons
who are appointed as arbitrators by both the parties. According to Section 2(1) (a) of the
Arbitration and Conciliation Act, 1996 “Arbitration means any arbitration whether or not
administered by permanent arbitral institution”. In other words, any form of arbitration
irrespective of its nature has been recognised statutorily in India by bringing such arbitration
under the ambit of the Arbitration and Conciliation Act, 1996. It consists of a simplified trial,
with simplified rules of evidence and with no discovery. Arbitration hearings are usually not a
matter of public record. The arbitral award is binding on the parties just like a court decree or
order.

Difference between Arbitration and Mediation

1.Definition:

Arbitration – Arbitration is outside the court settlement of a dispute by one or more (odd
number) persons who are appointed as arbitrators by both the parties.

Mediation - Mediation involves usually a neutral third party who tries to facilitate the issues
between the parties and guides them through dialogues to a win-win situation.

2.Governing law in India:

Arbitration - Part I and II of the Arbitration and Conciliation Act, 1996.

Mediation - Mediation Bill, 2021 after it is passed and comes into force
3.Procedural rules followed:

Arbitration - Mutually decided by the parties; in case of institutional arbitration the institutional
rules are usually adopted; in case of ad hoc arbitration the parties mutually. decide the arbitral
rules to be followed i.e. the seat of arbitration is decided by the parties. E.g.: the parties may
agree to follow the UNCITRAL Arbitration Rules.

Mediation - Mutually decided by the parties; usually CEDR Model Mediation Procedure or
their equivalents are followed.

4. Nature of outcome:

Arbitration - Binding and thus mostly enforceable.

Mediation - Usually non-binding, unless a court order directs to the contrary.

5. Role of third parties:

Arbitration - Roughly speaking, the third party, i.e., the arbitrator(s) who constitute the arbitral
tribunal act like a civil judge.

Mediation - The third party, i.e., the mediator, engages in talks with both parties and helps both
parties come to a win-win solution to the dispute.

PROCESS OF MEDIATION

Whenever any case is to be sent to mediation, the following process is followed-

Step 1: Convening the Mediation Process

The convening of the mediation is often the most difficult and challenging part of the mediation
process. It involves a varied range of procedures-

Reference to ADR by the Court

The court is required to direct the parties to opt for any of the five modes of alternative dispute
resolution and to refer the case for Arbitration, Conciliation, Judicial Settlement, Lok Adalat
or mediation under Section 89 and Order X Rule 1A of Code of Civil Procedure, 1908. The
Court must consider the option exercised by the parties and the suitability of the particular case
for the option chosen. The judge making the reference, known as the referral judge, is required
to acquaint himself with the facts and the nature of the dispute, and objectively assess the
suitability of ADR. This appropriate stage for making the reference in civil cases is after the
completion of pleadings and before framing the issues, while in cases pertaining to family law,
the appropriate time for making the reference would be immediately after service of notice on
the respondent and before the filing of objections/written statements by the respondent. Even
if the court did not refer the cases to ADR at these times, nothing prevents it from referring to
it at a later stage.

Preparation for Mediation

The referral judge then has the crucial job of bringing the parties together and motivating them
to resolve their disputes through mediation. This involves finding the reasons for any
disinclination on behalf of the parties to enter into mediation, along with explaining the
concept, process and advantages of mediation. While the consent of parties is required for
mediation, the court can also apply external pressure to induce the parties to enter the
mediation, to the extent of ordering or forcing them to do so.

Referral Order

A referral order issued by the referral judge initiates the process of mediation and is the
foundation of a court-referred mediation. An ideal referral order contains details like name of
the referral judge, case number, name of the parties, date and year of institution of the case,
stage of trial, nature of the dispute, the statutory provision under which the reference is made,
next date of hearing before the referral court, whether the parties have consented for mediation,
name of the institution/mediator to whom the case is referred for mediation, the date and time
for the parties to report before the institution/ mediator, the time limit for completing the
mediation, quantum of fee/remuneration if payable and contact address and telephone numbers
of the parties and their advocates.
Step 2: Initiation of the Mediation Process

The mediator has to ensure that the parties and their counsels are present at the commencement
of the mediation process.

Introduction and Opening Statement

Introduction

The mediator gives an introduction with his qualifications, establishes his neutrality and
reposes faith in the mediation process. The mediator requests the parties to introduce
themselves, attempts to develop a rapport with them and gain their confidence and trust. The
motive is to create a constructive environment conducive to negotiations and motivate the
parties for an amicable resolution of disputes. The mediator establishes control over the
mediation process. There is no standard set of rules that have to be followed, making the
mediation procedure flexible.

Opening Statements

The mediator’s opening statement is intended to explain to the parties-

The concepts, processes and stages of mediation, the role of the mediator, advocates and parties
and the advantages and ground rules of mediation. The mediator confirms that the parties have
understood the process and gives them the opportunity to get any doubts clarified. Statements
are also sought from the negotiators. The parties articulate their positions, enabling the other
party to understand what they want.

This is followed by a restatement of the problem by the mediator where an attempt is made to
incorporate the differing perspectives.

Step 3: Setting the Agenda

Setting the agenda is an important duty imparted on the mediator in order to shed clarity on the
mediation proceedings and remove vagueness. It involves setting down the order in which
negotiation is to proceed and gives the parties a standard using which they can individually
evaluate the progress of the negotiations. The mediator may mention the time and venues for
the negotiation sessions, along with the issues before the parties, to be discussed sequentially.

Step 4: Facilitation of Negotiation and Generation of Options

Joint Session

The purpose of the joint session is to gather information. The mediator provides an opportunity
for the parties to hear and understand each other’s perspectives, relationships and feelings. The
petitioner is allowed to explain their case in their own words, followed by the presentation of
the case by their counsel and the statement of the legal issues. Similarly, the defendant is
allowed to explain their case, followed by the presentation of the case and statement of the
legal issues involved by the defendant’s counsel. The mediator attempts to understand the facts,
issues, obstacles and possibilities and ensures that each participant feels heard. The mediator
encourages communication and asks questions to elicit information. At the completion of the
joint session, the mediator may also suggest meeting each party with their counsel separately.

Separate Sessions

The separate sessions are meant for the mediator to understand the dispute at a deeper level. It
provides the parties with a forum to further vent their feelings and disclose confidential
information they do not wish to share with the other parties. It helps the mediator to understand
the underlying interests of the parties, the positions taken by them and the reasons for these
positions, identify areas of dispute, differential priorities and common interests, and to shift the
parties to a mood of finding mutually-acceptable solutions. The mediator is supposed to
reaffirm confidentiality, gather further information and challenge and test the perceptions and
conclusions of the parties in order to open their minds to different possibilities. This is to be
done by asking effective questions and helping the parties understand the strengths and
weaknesses of their cases. The mediator offers options which he feels best satisfies the
underlying interests of the parties.

Step 5: Reaching a Settlement

By helping parties to understand the reality of their situation and give up rigid positions, the
mediator creates creative options for settlement. The mediator can conduct as many separate
sessions as necessary and may even conduct sessions with groups on the same side with
diverging interests. The parties negotiate through the mediator until a solution mutually
acceptable to all the parties involved. The mediator directs the parties to a solution which he
believes will satisfy the underlying interests of the parties. In case negotiations fail, the case is
sent back to the referral court.

JUDGEMENTS RELATED TO MEDIATION

Salem bar Association V. Union of India

Facts of the Case

The present case Salem Advocate Bar Association v. Union of India is basically an aftermath
of the original case Salem Advocates Bar Association, Tamil Nadu. v. Union of India. The
Honourable Judges presiding over the case were Y.K. Sabharwal, D.M. Dharmadhikari and
Tarun Chatterjee. The subject is basically related to Constitution and is a case of civil nature.
In the former case there were certain amendments made to Code of Civil Procedure, 1908 by
the Amendment Acts of 1999 and 2002.

The following amendments were made:

(i) In Section 26(2) and Order 6 Rule 15(4) of Code of Civil Procedure, 1908 in this the
affidavit filed under Section 26(2) and Order 6 Rule 15(4) would not be evidence for purpose
of trial.

(ii) Written statement: Order 8 Rules 1 and 10 of Code of Civil Procedure, 1908: It was held
that the limitation provided under Rule 1 is only directory and finally Court empowered to
extend time limit in exceptional cases.

(iii) Execution of decree: Section 39 (4) and Order 21 Rules 3 and 48:

(iv) Sale of attached property - Sections 64 (1) and 64 (2) of Code of Civil Procedure, 1908:

(v) Notice: Section 80 of Code of Civil Procedure, 1908 Central and State Governments
directed to appoint an Officer in charge of replying notices received by it under Section 80 or
under other similar provisions . In case notice has not been replied or reply is evasive and
vague and has been sent without proper application of mind. Court shall ordinarily award
heavy cost against Government and direct it to take appropriate action against concerned
Officer including recovery of costs from him.

(vi) Alternative Dispute Resolution: Section 89 of Code of Civil Procedure, 1908 and Sections
82 and 84 of Arbitration and Conciliation Act, 1996: Procedure for option to arbitration among
four ADRs is not contemplated by Act of 1996.Under Sections 82 or 84 no application where
parties agree to go for arbitration under Section 89.The act of 1996 would apply only from
stage after reference and not before stage of reference if reference to arbitration made under
Section 89 - Judge who makes reference not disqualified to try suit afterwards if no settlement
is arrived at between parties. The former case which created the abovementioned amendments
was rejected by this Court but it was noticed in the judgment that modalities have to be
formulated for the manner in which section 89 of the Code and, for that matter, the other
provisions, which have been introduced by way of amendments, may have to be operated. For
this purpose, a Committee headed by a former Judge of this Court and Chairman, Law
Commission of India (Justice M. Jagannadha Rao) was constituted so as to ensure that the
amendments become effective and result in quicker dispensation of justice. It was further
observed that the Committee may consider devising a model case management formula as well
as rules and regulations which should be followed while taking recourse to the Alternate
Disputes Resolution (ADR) referred to in section 89. It was also observed that the model rules,
with or without modification, which are formulated may be adopted by the High Courts
concerned for giving effect to section 89(2)(d) of the Code. Further, it was observed that if any
difficulties are felt in the working of the amendments, the same can be placed before the
Committee which would consider the same and make necessary suggestions in its report.

Issue involved in the Case

whether the amendments made in the Code of Civil Procedure, 1908 by the Amendment Act
of 1999 and 2000 were constitutionally valid?

Judgement

The report is in three parts. Report 1 contains the consideration of the various grievances
relating to amendments to the Code and the recommendations of the Committee. Report 2
contains the consideration of various points raised in connection with draft rules for ADR and
mediation as envisaged by section 89 of the Code read with Order X Rule 1A, 1B and 1C.
Report 3 contains a conceptual appraisal of case management.

Conclusion

this case is a landmark case in the history of Indian Judiciary. This set of two cases, former
one, laying down the amendments and the latter one providing a report on the amendment's
feasibility have laid down the foundation of providing quick, financially accessible and proper
justice. This basically intends to reduce the number of suits filed in the courts every year. The
case has been referred to in numerous cases of civil nature after the amendments by the Act of
1999 and 2002. Moreover, the model provided to be followed by the trial court is an easily
practicable model and does show the 'bright light of proper and speedy justice in the darkness
of innumerable cases; the rules provided in the model are appropriate for the system of Indian
Judiciary and hence should be properly followed.

K Srinivas Rao V. DA Deepa 2013

Facts

The husband filed the petition on the supreme court granting a divorce on the basis of mental
cruelty caused to him by his wife. The dispute started with a fight among the elders of the
family, following which the wife’s family took her away from the matrimonial house. The
wife later filed a petition for restitution of conjugal rights, to which the husband filed a divorce
petition. According to her, the reason behind her actions was to force her husband to accept
her again. This was followed by series of events such as wife filing a case of dowry against
the husband, wife alleging husband mother of asking her to sleep with husband’s father,
husband beating his mother in law, wife’s brother threatening her mother in law and so on.
The family court considered the wife’s action as cruelty and dismissed the petition while the
High Court stated that as the wife and husband weren’t living under the same roof, their actions
cannot amount to cruelty and granted 6 months imprisonment to the husband under the dowry
charges. The husband filed a petition in the Supreme court.

Issues

1.Can the wife’s actions amount to cruelty?

2.How could the parties have handled the present situation in a better way?

Apex Court’s Order

The statements made by the wife against the husband’s mother are sufficient to cause immense
humiliation and agony to the husband. All the actions undertaken by the wife, though for being
desperately being with him, caused enough suffering to husband and his family, which no
doubt amounts to cruelty. Though cruelty is not a ground for divorce, in present case separation
for 10 years and this escalated animosity between the parties makes the irretrievable
breakdown of marriage a ground for divorce. The issue wouldn’t have escalated to such an
extent if proper guidance had been provided to the wife, telling her that her action won’t help
her get her husband back. But, in matrimonial issues, only one party cannot be blamed. 10-
15% of the matrimonial cases sent for court-directed mediation get resolved. If the parties in
the present case, would have tried to resolve the dispute on the onset itself, things wouldn’t
have been this ugly. For this, the court suggested the process of mediation. Where the parties
could have taken the help of a neutral person help to understand the dispute better and have
arrived at an amicable solution. The court referred to section 9 of the Family Courts Act and
said that mediation should be made compulsory in disputes where settlement is possible.
Dowry cases being non-compoundable offenses can be referred for mediation, but even if in
these cases parties decide for settlement, they can surely opt this. The court also directed the
lower courts to set up a pre-mediation help desk for better implementation and mechanism of
the mediation process.

Afcons infrastructure and Ors. V. Cherian Verkey Construction Ors.2010 (8) SCC 24

In Afcons Infrastructure Ltd v Cherian Varkey Construction Co (P) Ltd(1) the Supreme Court
was faced with the question of whether the court, in the absence of an arbitration agreement
between the parties, was competent to refer the parties to arbitration under Section 89 of the
Code of Civil Procedure 1908.(2) After an elaborate discussion on the scheme of alternate
dispute resolution enshrined within the code, the court held that unless both parties consent to
such referral, the courts cannot refer the parties to arbitration under Section 89 of the code.
Facts and issues

Cochin Port Trust contracted out the construction of a number of bridges and roads to M/s
Afcons Infrastructure Ltd, the appellant, under an agreement dated April 20 2001. The
appellant subcontracted part of the work to M/s Cherian Verkey Construction Co (P) Ltd, the
respondent, under an agreement dated August 1 2001. This agreement contained no provision
for referral of disputes to arbitration. When disputes arose between the appellant and the
respondent, the respondent filed a suit for recovery of around Rs21 million against the
appellant and its assets or the amounts due to the appellant from the Cochin Port Trust, with
interest charged at 18% a year. On September 15 2004 an order of attachment was made with
regard to a sum of Rs22.5 million. Thereafter, in March 2005 the respondent filed an
application under Section 89 of the code before the trial court, requesting that the court
formulate the terms of settlement and refer the matter to arbitration. The appellant opposed the
application, submitting that it was not agreeable to refer the matter to arbitration or any of the
other alternative dispute resolution processes under Section 89 of the code. Furthermore, the
appellant filed an appeal against the order of attachment. Through an order dated September 8
2005, the Kerala High Court allowed the appeal and raised the attachment granted by the trial
court, subject to certain conditions. The high court also directed the trial court to consider and
dispose of the application filed by the respondent under Section 89 of the code. The trial court
heard the application under Section 89 and recorded that the respondent was agreeable to
arbitration, but the appellant was not. However, the trial court allowed the application and held
that as the appellant's claim in the suit related to a work contract, it was appropriate that the
disputes be settled by arbitration. Aggrieved by the trial court's decision, the appellant
preferred a revision petition before the high court. Through an order dated October 11 2006
the court dismissed the revision petition and held that Section 89 permits courts in appropriate
cases to refer even unwilling parties to arbitration. The court held that the concept of a pre-
existing arbitration agreement, which was necessary for referral to arbitration under the
provisions of the Arbitration and Conciliation Act 1996, was inapplicable to referrals under
Section 89 with regard to the Supreme Court decision in Sukanya Holdings (P) Ltd v Jayesh
H Pandya. (3) Aggrieved by the high court's decision, the appellant filed a special leave
petition before the Supreme Court.
Decision

After an elaborate discussion on the scheme of Section 89, the Supreme Court observed that
Section 89 was a poorly drafted provision of law. However, applying the principle of purposive
construction, the court held that the section presupposes the non-existence of an arbitration
agreement. However, even in the absence of an arbitration agreement, the parties, if willing,
could opt for arbitration under Section 89, and it is only in such situations (i.e., where the
parties are willing) that a court is competent to refer the dispute to arbitration. The Supreme
Court held that if there is no agreement between the parties for reference to arbitration, the
court cannot refer the matter to arbitration under Section 89, and that the same is clear from
the provisions of the Arbitration and Conciliation Act. The court observed that a court has no
power, authority or jurisdiction to refer unwilling parties to arbitration if there is no arbitration
agreement. Although the legal position in India has consistently been that Section 89 mandates
reference to alternative dispute resolution processes, reference to arbitration under Section 89
can be made only with the consent of both sides.

Comment

The Supreme Court has correctly held that in the absence of an arbitration agreement, the
courts cannot refer an unwilling party to arbitration. It is stated that since arbitration is
essentially an adjudicatory mechanism resulting in the exclusion of other conventional
remedies, the parties must be willing and the court cannot force such a mechanism on unwilling
parties. This interpretation given by the Supreme Court to Section 89 of the Code of Civil
Procedure is also in consonance with the scheme of the Arbitration and Conciliation Act,
which presupposes the existence of an arbitration agreement for parties to be mandatorily
referred to arbitration.
 CASE STUDY

Case Report

CASE 1

Date: 12/01/2023.

Mediation case number: 12508

Parties: Petitioner ABC; Respondent XYZ

Nature of Case: Matrimonial

Sections involved: 498A, 323,354 of IPC, 13(B) HMA

Proceeding of case: all proceeding was completed

Outcome of the day: Mediation completed, Parties came for final settlement, the amount of
final settlement was 11 lakh which has to be paid in 3 installments.

Comment: The Mediator provided the parties with best alternative to dispute.

CASE 2

Date: 13/01/2023

Mediation case number: 2775

Parties: Petitioner ABC; Respondent XYZ

Nature of Case: Matrimonial

Sections involved: 307, 323,354 of IPC.

Proceeding of case: Joint Session.

Outcome of the day: The respondent agrees for reunion with petitioner but petitioner

demanded another date to consult with parents thus next date is given to parties.

Comment: The Mediator provided the parties with best alternative to dispute.

CASE 3

Date: 17/01/2023.

Mediation case number: 3970

Parties: Petitioner ABC; Respondent XYZ

Nature of Case: Matrimonial:

Sections involved: 498A, 323,354 of IPC.

Proceeding of case: Joint Session then Separate session with respondent and again joint

session at last.

Outcome of the day: The petitioner wants divorce but the respondent neither wants restitution

of marriage nor divorce thus the mediation was dismissed on the request of respondent and

by the consent of petitioner.

Comment: The Mediator provided the parties with best alternative to dispute.

CASE 4

Date: 17/01/2023.

Mediation case number: 3469

Parties: Petitioner ABC; Respondent XYZ

Nature of Case: Matrimonial

Sections involved: 498A, 323,354 of IPC.

Proceeding of case: Joint Session.

Outcome of the day: Husband and wife both are agree for one time settlement, wife accepted
for 2 lakhs as settlement amount, next date i.e. 24/01/23 given for interim settlement.

Comment: The Mediator provided the parties with best alternative to dispute.

CASE 5

Date: 17/01/2023.

Mediation case number: 0230

Parties: Petitioner ABC; Respondent XYZ

Nature of Case: Matrimonial

Sections involved: 498A, 323,307 of IPC.

Proceeding of case: Joint Session.

Outcome of the day: Both the parties were present and under no circumstances they are ready
to live together and both the parties agreed for divorce by mutual consent through one time
settlement , amount fixed for settlement was 3 lakhs ,therefore next date is given to the parties
for interim settlement on 07/02/2023.

Comment: The Mediator provided the parties with best alternative to dispute.

CASE 6

Date: 18/01/2023.

Mediation case number: 0253

Page 18 of 23
Parties: Petitioner ABC; Respondent XYZ

Nature of Case: Matrimonial:

Sections involved: 498A, 323 of IPC and DP 3(23).

Proceeding of case: Joint Session.

Outcome of the day: The parties are not agree for reunion and they agreed on divorce thus

next date is given to decide the alimony amount .

Comment: The Mediator provided the parties with best alternative to dispute.

CASE 7

Date: 18/01/2023.

Mediation case number: 3408

Parties: Petitioner ABC; Respondent XYZ

Nature of Case: Matrimonial:

Sections involved: 354 of IPC.

Proceeding of case: Joint Session.

Outcome of the day: Both the parties disagreed on the point of reunion next date is given on

8/02/23 for deciding alimony amount for the divorce.

Comment: The Mediator provided the parties with best alternative to dispute.

CASE 8

Date: 20/01/23

Mediation case number: 0309

Parties: Petitioner ABC; Respondent XYZ

Nature of Case: Matrimonial:

Sections involved: 498, 313,323,504,506,376 of IPC and 3/2 of Dowry Prohibition Act.

Proceeding of case: Joint Session.

Outcome of the day: Both parties couldn’t agree for reunion so for divorce next date

is given.

Comment: The Mediator provided the parties with best alternative to dispute