ADVANTAGES OF ADR

1. It can be used at any time, even when a case is pending before a court of law.
However, recourse to ADR as soon as the dispute arises may confer maximum
advantages on the parties.
2. It can provide a better solution to dispute more expeditiously and at less cost than
litigation.
3. ADR programmes are flexible and not afflicted with rigours of rules of procedure.
4. ADR can be used with or without an advocate.
5. ADR proceedings help in the reduction of the work – load of the courts and thereby
help them to focus attention on the case, which ought to be decided by Courts.

II. DIFFERENCES
i. Arbitration and conciliation
ii. Judicial process, arbitration and Mediation
iii. Mediation, Conciliation and Lok Adalat
iv. Mediation and Negotiation

i. Arbitration and Conciliation

Arbitration Conciliation

The arbitration proceedings are quasi – Conciliation proceedings are non – judicial in
judicial in nature. nature.

In arbitration proceedings, the matter is In case of conciliation, parties arrive at a

adjudicated in an arbitral tribunal. settlement with the assistance of conciliator

It requires a prior agreement. Conciliation may be initiated without such prior

agreement.

In arbitration proceedings, all In conciliation proceedings, the factual

information must be given by a party information given by the party to conciliator may
which will be subject to scrutiny by the be subjected to confidentiality.
other party.

An award is made and signed by the A settlement agreement may be made by the
arbitrator but it does not require parties themselves or with the assistance of
authentication. conciliator. The conciliator shall authenticate the
settlement agreement.
 There cannot be unilateral termination A party can unilaterally bring the conciliation
of arbitration proceedings. proceeding to an end.

ii. Judicial process, arbitration and Mediation

Judicial Process Arbitration Mediation

This is an adjudicatory This is a quasi – judicial This is a negotiation process and

process where a third adjudicatory process where not an adjudicatory process. The
party (judge/other the arbitrator(s) appointed by mediator facilitates the process.
authority) decides the the Court or by the parties Parties participate directly in the
outcome. decide the dispute between resolution of their dispute and
the parties. decide the terms of settlement.

Procedure and decision Procedure and decision are Procedure and settlement are not
are governed, restricted governed, restricted and controlled, governed or restricted
and controlled by the controlled by the provisions by statutory provisions; thereby
provisions of the of the AC Act, 1996. allowing freedom and flexibility.
relevant statutes.

The decision is binding The award in an arbitration is A binding settlement is reached

on the parties. binding on the parties. only if parties arrive at a mutually
acceptable agreement.

Adversarial in nature, as Adversarial in nature – as Collaborative in nature – as focus

focus is on past event focus is on determination of is on the present and the future and
and determination of rights and liabilities of resolution of disputes is by mutual
rights and liabilities of parties. agreement of parties irrespective
parties. of rights and liabilities.

Personal appearance or Personal appearance or Personal appearance and active

active participation of active participation of parties participation of the parties are
parties is not always is not always required. required.
required.
 A formal proceedings A formal proceeding held in A non – judicial and informal
held in public and private following strict proceedings held in private with
follows strict procedural procedural stages. flexible procedural stages.
stages.

Decision is appealable. Award is subject to challenge Decree/order in terms of the

on specific ground. settlement is final and is not
appealable.

No opportunity for No opportunity for parties to Optimal opportunity for parties to

parties to communicate communicate directly with communicate directly with each
directly with each each other. other in the presence of mediator.
other.

Involves payment of Does not involve payment of In case of settlement, in a court

court fees. court fees. annexed mediation – the court fee
already paid is refundable as per
the Rules.

iii. Mediation, Conciliation and Lok Adalat

Mediation Conciliation Lok Adalat

Mediation is a non – Conciliation is a non – Lok Adalat is non – adjudicatory if it

adjudicatory process. adjudicatory process. is established under S. 19 of the
Legal Services Authorities Act,
1987. It is conciliatory and
adjudicatory if it is established under
S. 22B of the Legal Services
Authorities Act, 1987.

Voluntary process Voluntary process Voluntary process

Mediator is a neutral third Conciliator is a neutral Presiding officer is a neutral third

party. third party. party.

Service of lawyer is Service of lawyer is Service of lawyer is available.

available. available.
Mediation is a party Conciliation is a party In Lok Adalat, scope of negotiation
centred negotiation. centred negotiation. is limited.

The function of mediator The function of the The function of the Presiding officer
is mainly facilitative. conciliator is more is persuasive.
active than the
facilitative function of
the mediator.

The consent of parties is The consent of parties is The consent of the parties is not
not mandatory for mandatory for referring mandatory for referring a case to Lok
referring a case of a case to conciliation. Adalat.
mediation.

The referral court applies In conciliation, the The award of Lok Adalat is deemed
the principles of Order agreement is to be a decree of the Civil Court and
XXIII Rule 3, CPC for enforceable as it is a is executable as per S. 21 of Legal
passing decree/order in decree of the Court as Services Authority Act, 1987.
terms of the agreement. per S. 74 of AC Act,
1996.

Not appealable. Decree/order is not Award is not appealable.

appealable.

The focus of mediation is The focus in conciliation The focus in Lok Adalat is on the
on the present and the is on the present and the past and present.
future. future.

Mediation is a structured Conciliation also is a The process of Lok Adalat involves

process having different structured process only discussion and persuasion.
stages. having different stages.

In mediation, parties are In conciliation, parties Parties are not actively and directly
actively and directly are actively and directly involved so much.
involved. involved.

Confidentiality is the Confidentiality is the Confidentiality is not observed in

essence of mediation. essence of conciliation. Lok Adalat.

iv. Mediation and Negotiation

 Mediation Negotiation

Parties agree to work together, but under the Parties agree to work with one another in
guidance of a trained mediator. order to get a resolution. This means
relying on the other individual to want to
achieve a result.

It is more flexible and allows parties to either The disputing parties are required to meet
meet directly in the same room with a mediator with one another since there isn’t anyone
or to meet separately and have the mediator else involved.
shuttle back and forth.

A mediator does not have decision making Parties are able to bind themselves in an
power and does not hand down a ruling like an agreement.
arbitrator or a judge might.

The Mediator’s role is not to persuade one side Both parties are likely to use persuasion to
or another. force the other side to agree with them and
sign a document.

B. Communication - Verbal and Non - verbal

III. What is communication?

It is the process whereby we create and exchange messages.
Seven components of communication - Source, message, receiver, encoding, channel,
decoding and context. (need to elaborate of these)

Principles of Communication
a. Communication is constant - if not verbally, then non - verbally. You are always
communicating.
b. Communication is irreversible - your word or deed can leave an indelible imprint on
the minds and hearts of others. Be conscious of your choices as you create messages to others.
c. Communication is creative - this refers to creativity expressed in daily communication,
in the unique and special ways you communicate.
 2. Ability to persuade others
3. Ability to win confidence and respect of opponent
4. General problem solving and analytical skills
5. Self control, especially of emotions and their visibility
6. Insight into others’ feelings
7. Previous negotiating experience
8. Personal sense of security
9. Open - mindedness
10. Competitiveness
11. Debating ability
12. Status or rank in organisation
13. Trusting temperament

V. MEDIATION

What is mediation?
It is a negotiation process in which a neutral third party assists the disputing parties in resolving
their disputes. Mediator uses special negotiation and communication techniques to help the
parties to come to a settlement. The parties can appoint a mediator within mutual consent or
the court, in a pending litigation, can appoint a mediator.The mediator does not decide what is
fair or right, does not apportion blame, nor renders any opinion on the merits or chances of
success of the case is litigated. Rather the mediator acts as a catalyst to bring that to disputing
parties together by defining issues and limiting obstacles to communication and settlement.

Evolution in India - The concept of mediation goes back deep in our ancient times and deep
rooted in the culture of our country. Earlier, disputes used to be resolved in a panchayat at the
community level. With increase in population and liberalisation, globalisation and tremendous
economic growth there is an increase in litigation too. With this increase in litigation, there are
long delays in the resolution of disputes in the courts of law. Hence, the judicial system turned
to alternative forms of dispute resolution.
• The Legal Services Authority Act, 1987 gave statutory recognition to the system of Lok
Adalats.
• To handle the matters of compensation, house tax, big companies, the Arbitration and
Conciliation Act, 1996 replaced the Arbitration ACt, 1940.
• Amendment of S. 89 of CPC by the Code of Civil Procedure (Amendment) ACt, 1999,
with effect from 2002 by recommendation of the Law Commission of India and the
Malimath Committee.
o It became obligatory for the court - After framing the issue is to refer the dispute
for settlement either by way of arbitration, conciliation, mediation or judicial
settlement. It is only when the parties fail to get the dispute settled through any
of the alternative dispute resolution methods that a suit could proceed further.
Risks of Mediation
1. It can be used to find out confidential information from the other side – in joint sessions.
Therefore the need for confidentiality is stressed.
2. When there is a severe imbalance in negotiating strength between the parties that may
be reflected in the agreement.
3. An unethical mediator could abuse the position of trust and collude with one party to
deprive the other. However, in the case of medication, a party can withdraw from it at
any time without adverse consequences.

Difference between Mediation and Lok Adalat

Mediation Lok Adalat

Mediation takes place in a private conference Usually takes place in court premises where
room. Only parties, their advocates or other numerous cases referred to Lok Adalat are
persons helping them or accompanying them listed before different conciliators.
or involved in the mediation process are
present.

Structured process featuring introductory Customary for the conciliators to talk with
comments by the mediator, detailed exchange parties, with their advocates present. The
of info in a joint session exchange of information is limited.

A series of separate and private meetings with Discussion with conciliators is also limited
parties and an agreement stage. here. Even if conciliators speak privately
with part, it is generally only once, due to
time constraints.

The mediator controls the process by The conciliator determines how the process
following the stages of the mediation process will be handled, which party speaks and
and deciding the order or presentation, the when.
length of presentation, settling the agenda,
etc.

In mediation, parties or afforded reasonable There are usually strict time constraints. The
time to negotiate the agreement. It may take agreement has to be reached in a fixed
place over a course of time to accommodate amount of time as the tenure of the
the parties and the complexities of a dispute. conciliator is only for the given day. There is
no continuity and follow-up by the
conciliators.

In mediation, the parties control the outcome Here, the parties may usually agree to
and work together in arriving at a settlement disagree with a settlement proposed by
with the assistance of the mediator. conciliators.
 A dispute is referred to mediation by court Reference is made mostly by the consent of
order, by consent of the parties, or pursuant the parties or their advocates. Parties may opt
to a contract clause, etc. to appear or not to appear.

Party pays for mediation or the court pays for Parties do not pay for Lok Adalat expenses.
mediation, if the programme provides funds.

Mediation is a private process. Without The process is generally not private. It takes
consent of parties, neither the parties nor the place openly and in the presence of others
mediator can disclose the statements made who have assembled for their respective
during mediation, or documents prepared for cases.
mediation, such as mediation work.

The factual and legal analysis is detailed and Due to time constraints, there is rarely an
in depth. extensive discussion.

All types of disputes, including commercial, Mainly motor accident claims and insurance
contract disputes, personal injury claims, real claims are tackled.
estate, etc Can be negotiated and resolved.

Neutral Persons work in partnership with the The Conciliator attempts to persuade the
parties to assist them in finding a solution that parties to settle their case. There is no
means with their needs, interest, priorities, attempt to work together with the parties
etc. solution that meet with the parties' individual
needs.

Parties play an active role in presenting Parties play no active role in presenting
factual background, discussing positions, information, identifying interests, making
developing offers and counter offers, making offers of settlement, responding to offers of
decisions, etc. settlement and shaping the terms of
settlement.

Advocates play an active role. Advocates play a part in advising their

clients to settle if they consider it advisable
to settle.

Parties are not bound by traditional legal Here the case is to reduce monetary
remedies. Highly creative, innovative and damages. Imaginative solutions, involving
non-traditional solutions are possible. non - monetary or non - traditional remedies
are not usually considered.

Stages of Mediation
1. Introduction - A mediator introduces himself and the parties and explains the process
of mediation. The mediator must dispel all doubts in the mind of any of the party that a