A

Seminar Report on

Mediation
A reserviour of India

By

Khan Ayan Monis

Department of Law,
Heeralal Yadav Law College,
Sarojini Nagar, Lucknow
 A
Seminar Report on
Mediation
A reserviour of India
Inpartial fulfillment and requirement for the degree of
Bachelor of Law (Honours)

Submitted By :

Khan Ayan Monis

LL.B. (Hon’s)
Vth Year Xth Semester
Heeralal Yadav Law College, Lucknow

Under the Guidance of

Prof. Saloni Chhabra
Heeralal Yadav Law College, Lucknow

Department of Law,
Heeralal Yadav Law College,
Sarojini Nagar, Lucknow
 CERTIFICATE

This is to certify that the titled “Mediation As A Method of Dispute

Resolution" submitted for the award of Degree of Bachelors of Law LL.B. (Hon’s)
of Lucknow University, Lucknow is a record of research work done by Mr. Khan
Ayan Monis, under my supervision and guidance. The seminar topic is a genuine
work of research done in conformity with the rules and regulations of Law (Hon’s)
of the Lucknow University, Lucknow.
The seminar topic of standard expected of legal research and I recommend
that it may be sent for evaluation.

Date:
(Prof. Sonali Chabra)
HLYLC, Lucknow
MEDIATION AS A METHOD OF DISPUTE
RESOLUTION

This legal research work done by Mr. Khan Ayan Monis, under my
supervision and guidance of Prof. Sonali Chabra, LL.M., Prof, Heera lal Yadav
Law College, Sarojini Nagar, Lucknow.
 ACKNOWLEDGMENT

This year research on the Present investigation has been indeed very exciting
and stimulating to me. Not only I came to identify the significant problems in my
area of research, but also encountered alike problems which claim attention for
research. I am greatly indebted to my parent. without him blessing, I would not
have achieved this much success. I want to express a word of thanks to the students
who are involved in my present investigation. Thanks are due to my guide Mrs.
Sonali Chabbra, Professor, Heeralal Yadav Law College, Lucknow who took a
keen interest in my work and guided and co-operated in my work and guided and
co-operated me throughout the year. I am quite sure that without his kind help and
scholarly guidance, I would not have achieved this much Success. Thanks are due
to my College Principal who enthusiastically co-operated me throughout research
work. I want to express a word of thanks to my Teaching and Administrative Staff.
My gratitude is also directed to all my friends who have helped and cooperated me
directly or indirectly.

(Khan Ayan Monis)

LL.B. (Hon’s)
Vth year Xth Semester
HLY law College, Lucknow
INTRODUCTION
To ensure the maintaining of the rule of law, two things are necessary i.e.
public confidence in the justice system and accessibility of the system to the
general public. People should be able to make informed decisions about the best
way of resolving their disputes. However, accessible justice does not mean that
everyone with a grievance should be encouraged to go to courts; courts are a
valuable and limited resource. Moreover, not all disputes are suited to resolution in
the courts. Achieving access, therefore, means ensuring that members of the
community have access to legal advice about how best to manage their dispute.
Courts or formal justice system have its own limitation like mystification,
delays expenses and costs, geographical location and hence is a limited resource.
These problems have been the main driving force behind the zeal for exploring the
remedial measures. Recent trend, all over the world, is to shift from litigation
towards Alternative Dispute Resolution. Alternative Dispute Resolution
encompasses arbitration, mediation, conciliation, and other methods for resolving
disputes. Alternative Dispute Resolution offers several advantages over a lawsuit. It
is less adversarial and in some cases can be faster and less expensive. It can also
reduce court workloads for these reasons its use is being promoted by court
reformers in many developing countries.
ADR can be used in almost all types of contentious matters that are capable
of being resolved, under law by mutual agreement of the parties. These techniques
have been employed with positive results in various categories of disputes like
commercial, civil, industrial and family disputes. In particular, these techniques
have been shown to work across the full range of business disputes, banking,
contract performance and interpretation, construction contracts, intellectual
property rights, insurance coverage, joint ventures, partnership differences,
personal injuries, product liability, professional liability, real estate and securities.1
ADR process can be broadly divided into two categories i.e. adjudicatory and non-
adjudicatory. The adjudicatory procedures such as arbitration lead to a binding
ruling that decides the case. The non-adjudicatory methods like negotiation,

1 PC Rao, Alternative to Litigation in India”, Universal Law Publication, p. 35

mediation, etc. contribute to resolution of disputes by agreement of the parties
without adjudication.
ALTERNATIVE DISPUTE RESOLUTION
The quest for the ideal dispute resolution system is endless. This is more so
in the Indian context, where delays in the system are endemic, costs are stupendous
and retribution never an adequate deterrent. The willful defaulter almost always
drags litigation on endlessly and the genuine promoter is usually saddled with debts
he cannot liquidate easily. As the system is unlikely to change over might, all effort
must be directed towards finding solutions before resorting to litigation. Mediation
is one such method. The study focuses on mediation, an Alternative Dispute
Resolution (ADR) process institutionalized in India by the Code of Civil Procedure
(Amendment) Act, 1999.
Mediation is defined in Black's Law Dictionary2 as "a private, informal
dispute resolution process in which a neutral third party, the mediator, helps
disputing parties to reach an agreement".2 In contrast, arbitration is a formal, quasi-
judicial process where a neutral third party, the arbitrator renders a binding award
on the basis of material placed before him. Arbitration proceedings closely mirror
proceedings in a court of law.3
The mediator facilitates communication between parties and encourages
settlement. There is, unlike in arbitration, considerable latitude available to the
mediator. as he can privately discuss the merits of a dispute with each party
individually unthinkable in the adversarial arbitration process. In this context, it is
relevant to address the confusion regarding mediation and conciliation, as two
different or synonymous methods of dispute resolution. There seems to be a
considerable lack of clarity as to the scope of the words `mediation' and
`conciliation'. There is, for example, no consistency scope of the words 'mediation'
and 'conciliation'. There is, for example, no consistency in the use of these terms
worldwide, and a number of ADR systems perceive them to be synonymous. The
US and Australia use the tem 'mediation' while 'conciliation' is commonly used in

2 L Boulle, Mediation : Principle, Process & practice, Lexis Nexis Publication, p.

345
China, Japan, Thailand and Singapore. Black's Law Dictionary also fails to resolve
this distinction, if any, by defining the word 'conciliation' as "the adjustment and
settlement of a dispute in a friendly, unantagonistic manner, used in courts with a
view to avoiding trial and in labour disputes before arbitration"3
It is interesting that the United Nations Commission on International Trade
Laws (UNCITRAL) has rules for conciliation and not for mediation, while the
World Intellectual Property Organisation (WIPO) has rules for mediation but none
for conciliation. Even the CPC (Amendment) Act, 1999 incorporates, for the
purposes of mediation and conciliation, the language used in the UNCITRAL Rules
for Conciliation, thus perpetuating this verbal ambiguity. One is also, of course,
tempted to ask why a reference to both conciliation and mediation is made in the
CPC (Amendment) Act, if both are the same.
As the French arbitrator, Professor Charles Jarrosson says, there is a subtle
difference between mediation and conciliation - one of degree rather than nature.
Mediation is a more proactive form of conciliation, the latter being more passive in
the sense that the conciliator has an evaluative role as opposed to the facilitative
role of the mediator. Unlike a mediator, who has to be active and see that justice is
done, the conciliator is a withdrawn neutral.
Mediation was first introduced into India by the Arbitration and
Conciliation Act, 1996. Section 30 of the Act specifically encourages parties to
seek mediation and conciliation even when arbitral proceedings are underway. The
Act, however, does not draw up the rules for mediation as it does for conciliation,
thus rendering the provisions a dead letter. In 1999, the Government enacted the
Code of Civil Procedure (Amendment) Act, 1999 (CPC Amendment Act) where a
new Section 89 was introduced into the Code of Civil Procedure, 1908. The new
Section introduces the concept of what is known as judicial mediation', as opposed
to 'voluntary mediation'. A court can now identify cases where an amicable
settlement is possible, formulate the terms of such a settlement and invite the
observations thereon of the parties to the dispute. The observations received by the
Court thereafter can be used to reformulate, if necessary, an acceptable terms of

3 PC Rao, Alternative to Litigation in India”, Universal Law Publication, p. 348

settlement. Where the Court comes to the conclusion that mediation is the
appropriate mode of settlement, it may itself act as a mediator and shall affect a
compromise between the parties.
Records of mediation as a dispute settlement mechanism can be found from
ancient Roman and Greek times. In China, Confucianism and Buddhism, teach that
the harmony in human affairs through peace and understanding could be
maintained even in dispute resolution. The Japanese in rural areas also prefer
mediation over formal litigation to resolve their disputes with leader of the village
acting as a mediator. In African countries, disputes were generally settled through
an informal neighbourhood assembly called Moot. An elderly person acted as
mediator in settling the conflicts. In European countries, churches and clergy act as
mediators in settling the conflicts. In India, Panchayats used the mechanism of
mediation to resolve disputes long back.4

MEDIATION AS METHOD OF DISPUTE RESOLUTION

In the field of resolving legal controversies, mediation offers an informal
method of dispute resolution, in which a neutral third party, the mediator, attempts
to assist the parties in finding resolution to their problem through the mediation
process. Although mediation has no legal standing per se, agreements between the
parties can (usually with assistance from legal counsel) be committed to writing
and signed, thus rendering a legally binding contract.
Mediation contains three aspects; feature, values and objectives. The three
aspects, although different, can and do at times overlap in their meaning and use.
There are a number of values of mediation including non-adversarialism,
responsiveness and self-determination and party autonomy.
Each party, mediator and mediation process has values that can be attributed
to them. These values are as diverse as human nature itself and as such provides for
no uniformity amongst the values and on how those values are enforced by each

4 Albert Fiadjoe, ALTERNATIVE DISPUTE RESOLUTION: A DEVELOPING

WORLD PERSPECTIVE, 2004, Cavendish Publishing Ltd., U.K., p. 2
party. The non-adversarial value of mediation is not based on the attitudes of the
parties involved, but is based on the actual process of mediation and how it is
carried out. To clarify the context of the meaning it is said that litigation is
adversarial as its process must come to a logical conclusion based on a decision
made by a presiding judge. Mediation does not always end with a decision.
Responsiveness, another value of mediation, responds to the interests of the parties
without the restrictions of the law. It allows the parties to come to their own
decisions on what is best for them at the time. Responsiveness shows how the
mediation process is informal, flexible and collaborative and is person centered.
Self determination and party autonomy gives rise to parties being able to make their
own choices on what they will agree on. It gives the parties the ability to negotiate
with each other to satisfy their interests, generate some options which could lead to
an outcome satisfactory to both parties. This autonomy or independent structure
provided by the mediation process removes the need for the presence of
professional bodies and turns the responsibility back on to the parties to deal with
the issue and hopefully to a satisfactory conclusion.
Several different styles of mediation exist: evaluative, facilitative, and
theuraptic." Evaluative mediation does have somewhat of an advisory role in that
its practitioners evaluate the strengths and weaknesses of each side's argument
should they go to court; whereas facilitative mediators and theuraptic mediators do
not do this. Furthermore, their definitions of mediation differ in that evaluative
mediation has the main drive and goal of settlement while theuraptic mediation, in
contrast, looks at conflict as a crisis in communication and seeks to help resolve the
conflict thereby allowing people to feel better about themselves and each other. The
agreement that arises from this type of mediation occurs as a natural outcome of the
resolution of conflict.

MEDIATOR'S ROLES AND FUNCTIONS

Mediator's functions are creating favorable conditions for the parties'
decision making, assisting the parties to communicate and facilitating the parties'
negotiations. Mediators can contribute to the settlement of disputes by creating
favorable conditions for dealing with them. This can occur through: 5
Providing an appropriate physical environment- this is through selection of
neutral venues, appropriate seating arrangements, visual aids and security.
Providing a procedural framework- This is through conduct of the various
stages of mediation process. As the chair of the proceedings, they can establish
basic ground-rules and provide order, sequence and continuity. The mediators
opening statement provides an opportunity to establish a structural framework,
including the mediation guidelines on which the process will be based.
Improving the emotional environment - This is a more subtle function and
varies among mediations and mediators. They can improve the emotional
environment through restricting pressure, aggression and intimidation in the
conference room by providing a sense of neutrality and by reducing anxiety among
parties.
Confidentiality and Mediation
Confidentiality is a powerful and attractive feature of mediation. The private
and confidential aspect of mediation is in contrast with the courts and tribunals
which are open to the public. Privacy is a big motivator for people to choose
mediation over the courts or tribunals. Although mediation is promoted with
confidentiality being one of the defining features of the process, it is not in reality
as private and confidential as often claimed. In some circumstances the parties
agree that the mediation should not be private and confidential in parts or in whole.
Concerning the law there are limits to privacy and confidentiality, for example if
their mediation entails abuse allegations, the mediator must disclose this
information to the authorities. 6 Also the more parties in a mediation, the less likely
it will be to maintain all the information as confidential. For example some parties
may be required to give an account of the mediation to outside constituents or

5 Albert Fiadjoe, ALTERNATIVE DISPUTE RESOLUTION: A DEVELOPING

WORLD PERSPECTIVE, 2004, Cavendish Publishing Ltd., U.K., p. 2

6 [Link] visited on dated 09.06.2024

authorities. There are a number of reasons why mediation should be kept private
and confidential and these include:
 It makes the mediation appealing
 It provides a safe environment to disclose information and emotions
 Confidentiality makes mediation more effective by making parties talk
realistically
 Confidentiality upholds mediators reputation, as it reinforces impartiality
 Confidentiality makes agreement more final, as there is little room to seek
review.

SIGNIFICANCE OF THE TOPIC

Dispute resolution is at the core of administration of justice. Traditionally,
administration of justice was considered one of the essential functions of the state.
The law and order within the state is maintained through the administration of
justice and the citizens are made to realize the existence and the importance of the
state. After independence, India adopted British system and the British
administration of justice was only meant for the maintenance of law and order in
India. Though it is true that Britisher's built up a judicial system in India, which in
due course of time imbibed some of the positive values of the English legal system
like rule of law, independence of judiciary and equality before law, etc., but it also
resulted in a system of dispute resolution, which is dilatory, expensive, formal,
rigid, complex and orthodox.7
With the advent of the welfare state, the concept of dispute resolution has
changed. There has been great insistence on minimal state i.e. decentralizing of
state function. Moreover, with the globalization and liberalization the disputes do
not, generally, require a win-lose equation but rather a win-win equation. Most of
the disputes, worldwide, are settled or resolved without reference to lawyers or the
formal system. Out of those which reach lawyers, many are resolved with the
assistance of lawyers and without litigation. Out of those dispute that do enter the

7 Sukumar Roy, Alternative Dispute Resolution, Eastern Law house, 2 nd Edition p.

52
court or tribunal system, most resolve without a hearing. This is being made
possible by the ADR methods.
In some cases, all over the world, courts are requesting that lawyers and
their clients participate in court settlement devices. Section 89 of the Code of Civil
Procedure is also a step in this direction.8
Mediation, Conciliation and Arbitration as methods for resolving disputes
are historically more ancient than the Anglo-Saxon adversarial system of law. Thus
ADR is by no means a recent phenomenon in India, however, it has been organized
in a more clear and scientific lines and used more widely in dispute resolution in
recent years than before. Now, arbitration and conciliation are governed by the
Arbitration and Conciliation Act, 1996, Lok Adalat and judicial settlement are
governed by the Legal Services Authority Act 1987. For the purpose of arbitration,
we also have the ICADR Arbitration Rules, 1996 and for conciliation also there are
ICADR Conciliation Rules, 1996. So we can say barring arbitration, conciliation
and Lok Adalats, other ADR procedures like mediation are virtually unknown in
India. For a successful pursuit of ADR movement in India, three things are
absolutely necessary'' - Salem Advocate Bar Association v. Union of India

NEED FOR RESEARCH

Although, mediation can trace its roots to community programs, today
mediation is closely tied to numerous major societal institutions. Throughout the
world, mediation is now established as part of many court programs, many
corporations, and is used in schools, prison and other settings. In India, since the
amendments of the Code of Civil Procedure, institutionalization of mediation has
started. On the directions of the Supreme Court of India in Salem Bar I Case 9 in
2003, the Jagannadha Committee drafted the Mediation Rules and submitted these
for approval. These Rules were approved by the Supreme Court in 200510. This
judgment sets out the tone for adopting ADR measures in civil litigation. The
Supreme Court also suggested that all the High Courts examine these Rules for

8 Salem Bar Association Vs Union of India AIR 2005 SC 3353

9 AIR 2003 SC 189
10 AIR 2005 SC 3353
adoption within four months from the date of judgment. Another initiative was at
the District Court level which is managed by the Delhi Mediation Centre. It was
initiated as a Pilot Project in the beginning of August 2005 under the guidance of
Mediation and Conciliation Project Committee and assisted by the National Legal
Service Authority (NALSA)".

HYPOTHESES
A hypothesis is an assertion, assumption or proposition that the investigator
seeks to investigate. 11 It may prove to be correct or incorrect. The present study is
being carried out in view of following hypothesis:
1. As mediation is the answer to the quest for justice in the new millennium, its
institutionalization is need of the hour.
2. Mediation can be used as an alternative to court system and can also compliment
the court proceeding, in India.
3. Institutionalization of mediation is going in the right direction, in India.

OBJECTIVES OF THE STUDY

The present study is carried out in view of the following objectives:
1. To undertake the study into the concept and working of mediation process.
2. To explore the possibilities of resolving dispute through mediation in view
of the absence of any statutory law dealing with mediation in India.
3. To evaluate the effectiveness of mediation, it's application and its future in
India.
4. To address various technical, legal and ethical issues, which have to be dealt
before mediation can be used as a method of dispute resolution.

RESEARCH METHODOLOGY

11 Young, SCIENTIFIC SOCIAL SURVEY AND RESEARCH, 1997, Asia

Publishing House, New York, p. 104
 The study of each problem demands its own special technique, but there is
always an interdependence of various tools used in a research design. The
researcher has used both diagnostic desk research design as well as survey method.
The diagnostic desk research design is used to theoretically analyze various models
of mediations used internationally, so as to critically evaluate the model used in
India in court-annexed mediation.
This research design is also used to critically analyze various Indian laws on
institutionalization of mediation so as to suggest amendments to the existing legal
framework. The survey method is a technique of investigation by indirect
observation of a phenomenon or systematic gathering of date from available
records, files and other sources. The survey method is used by the researcher to
closely observe the working of the Mediation Centers and the mediation sessions
being conducted by the mediators at various Centers.
The survey was conducted by using the sampling method. The researcher
has used non-probability sampling method because he wanted to choose a desired
number of sample units. These units are selected deliberately so that only the
important items representing the true characteristics of the population are included
in the sample. The researcher had tried to include the mediator with highest
success rates and mediators with lowest success rates in terms of settlement to
have a balanced view on all the questions. For the purpose of collecting the
primary data, the interview schedule was used.
To make the present study more authentic and realistic a field study was
indispensable. The first model is followed for the first time in Ahmedabad. The
second model is followed, among other places, in Delhi. Inspite of this difference,
the scope of field study is not incomplete as in Delhi Courts both the models are
followed to some extent. In the District Court's Mediation Centres, the second
model is followed where a judicial officer is incharge of the Mediation Centre and
in the Delhi High Court Mediation Centre, the first model is followed to some
extent, in the sense, that the administration of the Centre is in the hands of
advocates but the Centre is run under supervision of High Court Judges. Therefore,
the researcher focused only on the Mediation Centres of the NCR of Delhi as it has
a fair blending of both the models.

RESEARCH QUESTIONS
Q.I. What is the need of mediation as an alternative method of dispute
resolution?
Q.2. How mediation is initiated and concluded?

CHAPTERISATION
In Chapter- I (Introduction), the researcher intends to introduce the topic, highlight
some of the major themes of the issue and describe how and why the researcher is
conducting the study. The chapter will include an attempt at defining mediation.
Mediation is a procedure for resolving controversies. It is process in which an
impartial intervene assists two or more negotiating parties, identity matters of
concern and then develop mutually acceptable proposals to deal with the concerns.
Three essential features of mediation are: firstly, a mediator has no preference for
what the parties' settlement terms shall be; secondly, a mediator has no authority to
impose a binding decision on the parties; and thirdly, parties do no reach complete
agreement in mediation unless each party accepts every settlement term. The
chapter also explores the reasons for the need to shift towards the mediation. The
researcher intends to discuss in this chapter that not only the problems associated
with the court system (like delay, expenses etc) were responsible for growth of
mediation but also the increased formalized and rigid shape which arbitration has
acquired in the later times. The chapter also discusses other factors like nature of
disputes, growing awareness of the clients in asserting autonomy, globalization,
highly technical nature of disputes, importance of maintaining relation etc as
responsible and influencing the growth of mediation as a method of dispute
resolution. The chapter also discusses the practice, policy and professional
development of mediation. The chapter also provides the detailed research
methodology and scheme of chapterisation.
 In Chapter - II (Mediation in India), the researcher intends to discuss the
concept of mediation, its origin, growth, and challenges faced by mediation in the
Indian context. Though ADR methods like mediation have been an important part
of Indian ethos and traditions, it still faces various challenges in the present context.
In India, mediation has come a long way from the panchayat of ancient India to the
Industrial Dispute Act, 1947. The concept of ADR was institutionalized through the
Legal Service Authorities Act, 1987. Information Technology Act, 2000 has given
an amicable base for the adoption of Online Dispute Resolution. Thus, ADR
methods are accommodated within the framework of Civil Procedure Code, 1908
and other laws. The concept has been fully recognized through Arbitration and
Conciliation Act, 1996 and the CPC Amendment Act, 1999 which inserted Section
89 in the CPC, 1908. Salem Advocates Bar Association v. Union of India
[(2005)6SCC 344] has made out that the reference to ADR methods is mandatory
for courts. The ruling is really a trigger for courts to operate Section 89 of CPC,
1908. However, there are certain problem like timing of the court's first
involvement in which case Section 89 is not clear and hence necessary reference is
to be made to order X, Rule 1(4), CPC, 1908. The chapter also includes other
problem associated in the application of Section 89 like whether the judge referring
matter for ADR will act as settlement judge, etc. The chapter will also include an
analysis of the Civil Procedure Mediation Rules and Part III of the Arbitration and
Conciliation Act, 1996, especially, in view of the fact that the concept of mediation
and conciliation still are devoid of a clear cut distinction. The chapter will also
include a discussion of various challenges which mediation face in India like lack
of awareness, infrastructure, hostilities from the Bench and the Bar, concerns
regarding applicability and implementation of mediation processes.
 Chapter- 1

INTRODUCTION
This world is the wonderful creation of God. Man is the highest and great
creation of him. He created human being to enjoy bliss and supreme peace and
happiness from within and to spread that fragrance of higher values around him. It
is the pure knowledge and will power to follow the right path, think and do welfare
of others which in turns bring extra sensuous joy. There was a time when people
were just like deities and there was age of Golden or Satyug. With the passage of
time man became selfish and there was lack of purity in his deeds. There is cut
throat competition and vices control the body, mind and soul of the man. Human
being faces many stressful situations and unfavorable life events push him even to
commit suicide. Social relations get disturbed if we are under stress and when
somebody commit suicide his other family members, relatives, friends and social
circle get irreparable shock. Nation becomes weak and youth is the great property
of the nation. Adolescence is a period of great stress, strain, strife and storm. At this
stage emotional, physical and social disturbances are at its peak. They are full of
Energy. Proper training of emotions and social skills lead to a wealthy and stress
free life. Adolescents can go in right direction, accomplish their goals, bring name
and fame to their families and nation by proper guidance. Will power and character
building is possible from the inside. They can add more feathers to their cap with
positive life style. Internal locus of control can be effective in this way. It can be
possible by doing the practice of meditation. Meditation is helpful in attaining cool
and relaxed mind by detaching one's sense organs and mental functions from
everyday thoughts and emotions. Meditation is found to offer some extraordinary
output to brain. Peace is the innermost nature of the soul that's why peace is
searched by everybody. It can't be attained with gross objects. Stress free life is
possible by practicing meditation and other yogic schedules as it is clear from many
research studies.

MEDITATION
Meditation is beneficial in making one's mind calm and cool. It helps in reducing
stress and makes him feel free from worldly tensions. One feels beyond body, mind
and 2 negative effects of environment. This peaceful state of mind is great source
of quick and accurate decision making process. Meditation transforms individual
without any medicine and therapy. Meditation helps individual to enjoy every
moment of life. It energizes mental faculties and improves life skills. One becomes
aware of his thought, speech and actions. Mediator feels easy to follow path of
righteousness. Inside change happens and world of mysteries opens for him. His
attitude and behaviour changes with the practice of meditation. It opens another
world of happiness, love and affection. It completely changes ones personality.
Yoga (Dhyan) is practiced to attain love, peace, happiness and a chilled state of
mind. How dhyan acts in this regard; there are two main passages through which
energy flow these are upward and downward. As Parmatma is highest of everything
he helps us in concentrating our energy and channelizes it into upward direction.
When our spiritual energy goes ito upward direction we feel relaxed and there
remains no stress and one feels a state of Bliss called paramanand . It leads to self-
contentment, self confidence, power to think and act in a positive way, changes our
outlook, attitude, behaviour and social circle. Adjustment and accommodation to
new situations, people, work, culture, relations and even geographical changes
made easy with showers of Dhyan. Yoga is now becoming way of leading good
and healthy life. It is not the property of any religion it belongs to all. It was
practiced and experienced long years ago. Indian Rishis had divine visions and
while doing pranayam and asanas they even had beyond body experiences. Those
experiences lead to universal peace, tolerance and world brotherhood. Knowledge
and practice of meditation can bring overall change in the personality of man. It is a
science and can be proved with experiments that meditation makes us free from
stress, fear and anxiety. "Meditation nowadays accepted as worldwide and its
benefits are well known to all the nations. The practice of meditation has become
increasingly popular all over the world in the last few decades.
Chapter – 2
MEDIATION IN INDIA
INTRODUCTION
India has a long-standing tradition of settlement of disputes by intervention of
elders of the community. Mediation is as old as Indian history. In Mahabharta,
when both the parties had decided to resolve the conflict in the battle-field,
conciliation efforts were made by Lord Krishna to avoid war and to amicably
resolve the conflict. In this Chapter, the researcher intends to discuss the concept of
mediation, its origin, growth, and challenges faced by mediation in the Indian
context. Though ADR methods like mediation have been an important part of
Indian ethos and traditions, it still faces various challenges in the present context. In
India, mediation has come a long way from the panchayat of ancient India to the
Industrial Dispute Act, 1947. The concept of ADR was institutionalized through the
Legal Service Authorities Act, 1987. The concept has been fully recognized
through Arbitration and Conciliation Act, 1996 and the CPC Amendment Act, 1999
which inserted Section 89 in the Code of Civil Procedure, 1908. In 2005, the
Supreme Court in Salem Advocates Bar Association . Union of India' has made out
that the reference to ADR methods is mnandatory for courts. The ruling is really a
trigger for courts to operate Section 89 of CPC, 1908. Thus, ADR methods are
accommodated within the framework of Civil Procedure Code, 1908 and other
laws. The chapter will include a discussion on the working of Section 89, CPC and
establishment of the Mediation Centres throughout the country to help in the
institutionalization of mediation. The Chapter will also include an analysis of the
Civil Proccdure Mediation Rules and Part III of the Arbitration and Conciliation
Act, 1996, especially, in view of the fact that the concept of mediation and
conciliation still are devoid of a clear cut distinction. The chapter will also include
discussion of various challenges which mediation face in India like lack of
awareness, infrastructure, hostilities from the Bench and the Bar, concerms
regarding applicability and implementation of mediation processes.
(2005) 6 SCC 344
HISTORY OF ADR MOVEMENT IN INDIA
As per Mulla's Hindu Law, ancient India began its search for laws since
Vedic times approximately 4000 to 1000 years B.C. The early Aryans primarily
invoked the unwritten laws of divine wisdom, reason and prudence, which
according to them governed heaven and earth. This may be considered as the first
originating principle of mediation Wisdom, Reason and prudence which is even
accepted in the western countries². The scarcely available ancient Indian literature
reflects the continued cultural co-existence of people for many centuries. The era of
Dharma Shastras (Code of Conduct) followed the Vedic epoch, during which
period scholastic jurists developed the philosophy of basic laws. Their learned
discourses recognized current usages and customs of different communities, which
included resolution of disputes non adversarial indigenous methods. The tribunal
propounded and set up by a brilliant scholar, Yagnavalkya, known as Kula dealt
with the disputes between members of the family, community, tribes, castes or
races. Another, tribunal known as Shreni, a corporation of artisans following the
same business, dealt with their internal disputes.
Puga was a similar association of traders in any branch of commerce. Another
scholar Parashar opined that certain questions should be determined by the
decisions of a parishad or association or an assembly of the learned. These
associations were invested with the power to decide cases indigenously based on
principles of justice, cquity and good conscience. These different components of
judicial machineries had considerable autonomy in matters of local and village
administration and in matters solely affecting trader's guilds, bankers and artisans.
The modern legislative theory of arbitration of commercial matters finds its origin
in ancient customary law in India. Cases were decided agrecably through such
usages and customs as were approved by the conscience of the virtuous and
followed by the people in general. This procedure was in consonance with the
moden concept of participatory nethods of dispute resolution with a strong clement
of voluntariness, which again, is the basis of moderm mediation procedures
VKane. HISTORY OF DHARMA SHASHTRAS, Vol. III, 1946
Niranian Bhat Evolution and Leislative History of mediation", GNLU Journal
of Law, Development and Politics, Vol.1,
Even Buddhism propounded mediation as the wisest method of resolving
problems. Buddha said, Mediation brings wisdom; lack of mediation leaves
ignorance. Know well what leads you forward and what holds you back; choose
that which leads to wisdom." This is the acceptance of the principle that mediation
works at future instead of dwelling in the past. Ancient Indian jurist Patanjali said,
"Progress comes swiftly in mediation for those who try hardest, instead of deciding
who was right and who was wrong 1t is widely talked that village panchayat used
to be recognized and accepted as conciliatory and/or decision making authority.
Though some people casually describe Panchayat's decision as an outcome of
mediation effort, it had greater element of arbitration than mediation.
Mediation, conciliation and arbitration, in their unstructured form, are
historically more ancient than the present day Anglo-Saxon adversarial system of
law (as is shown in Chapter II). Mediation gained a great popularity amongst
businessmen during pre British Rule in India. The Mahajans the respected,
impartial and prudent businessmen used to resolve the disputes between member
businessmen through mediation by the end of the day and were by turn, readily
available at business-centres to mediate the disputes between the members. The
constitution of these business associations used to have a provision to dismember a
merchant if he resorted to court before referring the case to mediation. This rule
had unanimous sanction of the entire business community'. The East India
Company from England gained control over the divided Indian Rulers and
developed its apparent commercial motives into political aggression. By 1753,
India became a British Colony and the English courts were established in India by
1775. The British ignored local indigenous dispute resolution procedures and
modeled the process in the courts on that of the British law courts of the period.
The British system of administration of justice gradually became the prime
justice delivery system in India during the British regime of about 250 years.
Indigenous local customs and mediation and conciliation procedures successfully
adopted by local people were held to be discriminatory, depriving the litigants of
their right to go to the courts. The British courts gradually came to be recognized
for its integrity and gained peoples' confidence. But with the passage of time,
complexities of life, commerce, public dealing, etc. increased. As a result
multiparty complex civil litigation, expansion of business opportunities beyond
local limits, increase in population, numerous new enactments creating new rights
and new remedies and increasing popular reliance on the only judicial forum of
courts bought an unmanageable explosion of litigation. The inadequate
infrastructure facilities to meet the challenge exposed the inability of the system to
handle the sheer volume of case loads efficiently and effectively. As a result of this,
people instead of waiting for years and passing on litigation by inheritance were
forced either to avoid litigation and let the dispute fester or to start resorting to
extra judicial remedies
Almost all the democratic countries of the world had to face the same
situation. The USA was first to introduce domestic law reforms about 40 years and
Australia followed the suit. The UK has also introduced reforms in its legal system.
The gist of these law reforms was introduction of ADR into the court system as
supplementing the court system and as case management tactics.
ADR MOVEMENT IN INDEPENDENT INDIA
It was only after independence and after realization that the formal legal
system will not be in a position to bear the entire burden, it was felt that the system
required drastic changes. The mounting arrears in the courts, inordinate delays in
the administration of justice and expenses of litigation have gradually undermined
the people's faith in the system. The need was felt to examine and choose methods
of dispute resolution which are les costly, less time consuming, less strenuous and
which is able to preserve the relations between the parties to the dispute.
The concept of ADR got legislative recognition in free India for the first
time in the Industrial Disputes Act, 1947. The conciliators appointed under Section
4 of the Act are charged with the duty of mediating in and promoting the settlement
of industrial disputes. Arbitration, as dispute resolution process was recognized as
early as 1879 and also found a place in the Code of Civil Procedure. When the
Arbitration Act was enacted in 1940, the provision for arbitration under Section 89
of the Code of Civil Procedure was repealed. There were significant developments
which gave needed impetus to recognizing conciliation as a useful alternative for
dispute resolution as compared to the court system. In 1984, faced with the
problems of mounting arrears in subordinate courts, the Himachal Pradesh High
Court evolved a project for disposal of pending cases by conciliation, insisting on
pre-trial conciliation in the cases. The experiment was in the nature of the Michigan
Mediation and the Mediation Project tried in Canada in a few pending cases though
not on the scale practiced in Himachal Pradesh. The success of the Himachal
experiments was widely welcomed. The Law Commission of India in its 77h and
131" Reports, the Conference of Chief Ministers and the Chief Justices in their
Resolution on December, 1993 and the Calcutta Resolution of the Law Ministers
and Law Secretaries meeting in 1994 commended other States to follow the
Himachal Project in their sub-ordinate courts.
The Indian Legislature made another headway by enacting the Legal
Services Authorities Act, 1987 by constituting the National Legal Services
Authorities Act, 1987 and by constituting the National Legal Services Authority as
a Central Authority with the Chief Justice of India as its Patron-in-Chief. The
Central Authority has been vested with the duty to encourage the settlement of
disputes by way of negotiations, arbitration and conciliation, Later in 1995-96, the
Supreme Court of India under the leadership of the than Chief Justice, Mr. A. M.
Ahmadi, undertook an Indo-US joint study for finding out the solutions of the
problem of delays in the Indian Civil Justice System and every High Court was
asked to appoint a study team which worked with the delegates of the Institute for
Study and Development of Legal Systems (ISDLS), a San Francisco based
institution. After gathering information from cvery state, a central study team
analyzed the information gathered and made some further concrete suggestions to
make provisions for immediate application of concepts of Case Management in
Civil Procedure Code with Special reference to the India scenario. Also in 1996,
the Indian Parliament enacted the Arbitration and Conciliation Act, 1996, which
was modeled on the United Nations Commission of International Trade Law
(UNCITRAL) Model Law on International Commercial Arbitration for developing
a system of arbitration and other forms of ADR systems in a modern and a well-
conceived legal framework. Further, the Law Commission of India in its 127 and
129 Reports, emphasized the desirability of the courts being empowered to compel
parties to a private litigation, to resort to arbitration or mediation. Following the
recommendation made by Justice Malimath Committee, and Law Commission in
its 129 Report and the Committee on Subordinate Legislation (11 Lok Sabha), the
Code of Civil Procedure Amendment Act, 1999 and 2002 were passed and Section
89 was inserted in the Code of Civil Procedure, 1908. The statement of objects and
reasons appended to the CPC Amendment Bill stated as follows':
"with a view to implement the 129 Report of the Law Commission of lndia
and to make conciliation scheme effective, it is proposed to make it obligatory for
the court to refer the disputes after issues are framed for settlement either by way of
arbitration, conciliation, mediation, judicial settlement or through Lok Adalats. It is
only after the parties fail to get their disputes settled through anyone of the
alternative disputes resolution methods that the suit shall proceed further in the
court in which it was filed."
Ghanshvam Singh, "Mediation/Conciliation- An Overview", Supreme Laws
Today, Jourmal Section. 2006, Vol. I. p.15

This is a special provision made for settlement of disputes outside the

Courts. A litigant is free to settle his dispute on reference made by the court by
resorting to either arbitration or any other method of ADR. The success of
Himachal experiment of disputes resolution by conciliation has given a new
dimension to the concept of dispute resolution, Instead of the disputing, parties
willingly come together with the aims of arriving at a mutually agreeable settlement
of their dispute with the assistance of a neutral third party mutually chosen. The
conciliation on Himachal pattern is a court-induced conciliation.
Justice R. V. Raveendran, "Section-89 CPC: Need making it mandatory for
the parties to attempt a conciliation for settlement of their dispute and approach the
court if conciliation fails.
The newly added Section 89 in the Code of Civil Procedure provided for
mandatory reference of cases pending in the courts along with other new cases
which will be filed in the courts. This was a great moral booster for the
implementation of ADR procedures in India. To bring into effect this provision, the
first elaborate training of mediators was conducted by American trainers sent by
ISDLS in Ahmedabad followed by a few advance training workshops conducted by
AMLEAD, a Public Charitable Trust settled by two senior Lawyers of Ahmedabad.
On 27h July 2002, the Hon'ble Chief Justice of India, Mr. Justice B. N. Kirpal,
formally inaugurated the Ahmedabad Mediation Centre the first lawyer's managed
Centre. The Chief Justice of India summoned a meeting of the Chief Justices of all
the High Courts of the Indian States in November 2002 at New Delhi and laid
stress on the importance of implementing mediation provisions in the CPC. By that
time, the Chennai Mediation Centre was opened and started effectively operating in
the premises of the Madras High Court. This Centre soon became the first Court-
Annexed Mediation Centre in India. AMLEAD and Gujarat Law Society
introduced in January, 2003, a thirty - two hours certificate course for "Intensive
Training in Theory and Practice of Mediation". The US Educational Foundation of
India (USEFI) organized training workshops at Jodhpur, Hyderabad and Bombay in
2003. The Delhi Judicial Academy organized a series of mediation training
workshops and opened a Mediation Centre in the Academy's Campus appointing its
Deputy Director as the Mediator". In the meantime, the Supreme Court of India
upheld the constitutional validity of the new law reforms in the case filed by Salem
Bar Association and appointed a Committee chaired by Mr. Justice Jagannadha
Rao, the Chairman of the Law Commission of India, to suggest and frame rules for
ironing out the creases, if any, in the new law and for implementation of mediation
procedure in civil courts. The Law Commission prepared consultation papers on
Mediation and Case Management Rules and framed and circulated Model Rules".
The Supreme Court approved the Model Rules and directed every High Court to
either adopt the Rules or frame them. Later, the Law Commission of India
organised an International Conference on Case Management, Conciliation and
Mediation at New Delhi in May 2003, which was great success. Keeping in tune
with the time, the Delhi District Courts also invited professional trainers from
ISDLS to train the judges as mediators and for helping to establish Court-Annexed
Mediation Centres. Later, Karnataka High Court also started Court-Annexed
Mediation and Conciliation Centre. Now, Court-Annexed Mediation Centres have
been started at Ahmedabad, Lucknow, Chandigarh, Ahmedabad, Rajkot, Jamnagar,
Surat, etc.
Currently, Court-Annexed Mediation and Conciliation Centres have started
working at several courts in India and the courts have been referring cases to such
Centres. In Court Annexed Mediation, the mediation services are provided by the
Court as a part and parcel of the same judicial system as against Court Referred
Mediation, wherein the court merely refers the matter.

LEGAL PROVISIONS ON MEDIATION UNDER INDIAN LAWS

Mediation and Conciliation is recognized by law as one of the best methods
of dispute resolution and is provided for under various statutes like the Industrial
Disputes Act (IDA) 1947, the Hindu Marriage Act 1955, Family Courts Act 1984,
Code of Civil Procedure (CPC) 1908, Legal Service Authorities Act 1987 and
Arbitration and Conciliation Act 1996. However, as there was no well-structured
process backed by statutory sanction, these methods could not achieve the same
degree of popularity as that in the western countries. However now-a-days, with the
court-annexed mediation and pre-litigation mediation and conciliation, situation is
improving. People of India are slowly accepting the ADR methods as feasible
modes of settlement of disputes.
Salem Advocate Bar Association, Tamil Nadu v. Union of India, (2003) 1
SCC49 Salem Advocate Bar Association v. Union of India, (2005) 6 SCC 344
Conciliation under Industrial Disputes Act, 1947
The machinery and modes of investigation and settlement of disputes
provided under IDA 1947 include conciliation. According to Chief Justice
Rajamannar, "The essential object of all recent labour legislation has been not so
much to lay down categorically the mutual rights and liabilities of employers and
employees as to provide recourse to a given form of procedure for the settlement of
disputes in the interest of maintenance of peaceful relations between the parties,
without apparent conflicts such as are likely to interrupt production and entail other
dangers."
 The conciliation machinery as provided under IDA is of two types:
Conciliation officers and Board of Conciliation. The Government, by notification,
appoints some officers as conciliation officers, entrusting them with the duty of
mediating in and promoting a settlement of industrial disputes. A conciliation
officer is appointed cither for a specified area or specified industry, or for a limited
period. The Board of Conciliation was in existence, as an investigation machinery,
to deal with the problem of industry since 1929. Section 2(c), IDA gave a
satisfactory authority to this Board, which is to be constituted by a notification.
Section 5 says it will have a Chairman and two or four other members, as the
appropriate government thinks fit. The Chairman shall be an independent person
and other members shall be persons appointed in equal numbers to represent the
parties to the dispute and any person appointed to represent a party shall be
appointed on the recommendation of the party. Section 10 empowers an appropriate
government to make reference of disputes to the Board of Conciliation, courts or
tribunals. Section 11 deals with procedures and powers of conciliation officers,
boards, court and tribunals. The Act empowers every Board of Conciliation with
the powers of a civil court's. Therefore, every Board of Conciliation shall have the
powers to enforce attendance of any person and examine him on oath, compel the
production of documents and material objects, issuing commissions for the
examination of witnesses, in respect of such other matters as may be prescribed.
Section 13 prescribed certain duties for the Board. When a dispute is referred to the

Board it has to try to achieve settlement and [9:52 am, 09/06/2024] Iru😍❤️:

investigate the same. It has to induce the parties to reach an agreement. If

settlement is arrived at, it has to send a report to the appropriate government with
memorandum of settlement. If not, failure report has to be sent.
The conciliation oflicer has no statutory power to decide the dispute or to
impose his decision on the parties. His role is one of 'facilitator in the sense that he
brings the parties to the negotiating table, offers his expert advice, narrows down
the issues on which the parties are at variance and encourages them to arrive at a
mutually acceptable settlement. Section 12 of the IDA enjoins upon the conciliation
officer the duty to investigate the dispute and all matters affecting the merits and
the right settlement thereof and to do all such things as he thinks fit for the purpose
of inducing the parties to resolve the dispute. The conciliation officer has the power
to take note of the existing as well as apprehended disputes either on his own
motion or on being approached by either party to the dispute. A glance at the role
of conciliation machinery over the past two decades reveals that conciliation is the
final stage at which 'interest' disputes, i.e., those relating to the determination of
long-range terms of employment and conditions of labour are settled. In a majority
of cases, the parties indeed come to an understanding at the bipartite level itself and
make a joint request to the conciliation officer to admit the matter in conciliation,
with a view to confer 12(3) status on the settlement°.
The importance of conciliation, lies in that once the proceedings commence,
the parties cannot resort to a strike or lockout. In case a settlement is not reached
between the parties, he has to send a failure report to the government, reflecting the
steps taken by him to settle the dispute and the reasons for failure. A settlement
arrived at in the course of conciliation procecdings is binding not only on the
parties but also on all the workmen concerned, whether or not they are parties to the
dispute. Under the IDA, conciliation proceedings are compulsory where the dispute
refers to a public utility concern. In all
E. M, Rao, INDURTRIAL JURISPRUDENCE - A CRITICAL
COMMENTRY, 2008, Lexix Nexis. Butterworths Wadh wa, Nagpur, p. 28-32
183
other cases, conciliation proceedings have been made optional at the
diseretion of the conciliation officer. Goswami J. observed";
There may be several factors that may influence parties to come to a
settlement as a phased endeavour in the course of collective bargaining. Once
cordiality is established between the employer and labour in ariving at a settlement
which operates well for the period that is in force, there is always a likelihood of
further advances in the shape of improved emolument by voluntary settlement
avoiding friction and unhealthy litigation. This is the quintessence of settlement
which courts and Tribunals should endeavor to encourage. It is in that spirit the
settlement has to be judged and not by the yardstick adopted in scrutinizing an
award in adjudication.
Justice Venkataramaiah observed that the law attaches importance and
sanctity to a settlement arrived at in the course of a conciliation proceeding since it
carries a presumption that it is just and fair and makes it binding on all the parties
as well as other workmen in the establishment or the part of it to which it relates.
The attitudes of the parties have a significant bearing on the pace of dispute
settlement. It is not uncommon that they resort to dilatory tactics resulting in
endless chain of joint meetings and conciliation proceedings. The NCL-I observed,
'conciliation is looked upon very often by the parties as merely a hurdle to be
crossed for reaching the next stage'." However, in the post-globalisation phase,
conciliation seems to be the last stage at which 'interest' disputes are settled in a
vast majority of cases.
Negotiation is one of the prime methods to settle industrial dispute. The
parties to dispute, employer and workmen are expected to negotiate to settle their
problems without intervention of third party. Without this essential aptitude, it is
not possible to settle any problem by way of conciliation. Formalisation of process
of conciliation through different provisions of law and rules such as IDA is not
enough to solve the problems. The National Labour Commission has gone into the
functioning of the conciliation machinery set up by various governments. It found
the proceedings to be disappointing in some States while successful in others. The
reasons are mainly the indifferent attitude towards conciliation on the part of
labour, management and even the conciliation officers, lack of understanding, delay
due to excessive workload on officers, procedural defects, insufficient information,
and adjournments. The Commission recommended setting up of free and
independent industrial relations Commission, in place of existing government
controlled industrial relation machineries.

Conciliation under the Hindu Marriage Act, 1955

Under the amended Hindu Marriage Act (HMA), the approach of the courts
in matters relating to family and marriage is different from that of the other
ordinary civil disputes. The amendment of HMA in 1976 provided for many
significant changes in the procedure like provisions for in-camera proceedings, if
desired by the parties, a prohibition on publication of family proceedings except the
judgement of the High Court or the Supreme Court printed or published with the
previous permission of the court, day to-day hearing of marriage disputes, fixing of
six months period for conclusion of proceedings, etc. Another very significant
amendment was addition of Section 23(2) to the Act. This sub-section states that
before proceeding to grant any relief under this Act, it shall be the duty of the court
in the first instance, in every case, to make every endeavour to bring about
reconciliation between the parties except in case of proceedings where relief is
sought on any of the grounds specified in clauses (ii), (ii), (iv), (v), (vi) and (vii) of
sub-section (1) of Section 13.
A Hindu marriage is not contractual but sacrosanct, it is not easy to create
such ties but more difficult to break them. A judge is required to actively stimulate
rapprochement process.2 Section 23(2) is salutary provision exhibiting the intention
of the Parliament requiring the court in the first instance to make every endeavour
to bring about reconciliation between the parties. The approach of court in
matrimonial matters is required to be much more constructive, affirmative and
productive rather than abstract, theoretical or doctrinaire. Matrimonial matters must
be considered by the courts with human angle and sensitivity.
"Herbertsons Ltd. y, Workman, AIR 1977 SC 322 "General Manager,
Security Paper Mills v. R. S. Sharma, AIR 1986 SC 954 "Government of India,
Report of the National Commission on Labour, 1969, p. 323
Sub-section (3) makes a provision empowering the court on the request of
the parties or if the court thinks it just and proper for the purpose of reconciliation
to adjourn the proceedings for a reasonable period, not exceeding 15 days. The
court is also given power to refer the matter to any person named by the parties, or
even to nominate a person if the parties fail to name any person and to give
directions to report to the court. When a report is submitted, the court shall have
due regard to it while disposing of the proceedings. The restriction placed on the
court while adjourning the case for the purpose of reconciliation only to a period
not exceeding 15 days is in consonance with the policy of speedy disposal, as
contained in section 21B which was added in 1976.

Conciliation under the Family Courts Act, 1984

The Family Courts Act was passed by the Parliament to address the problem of
family disputes. Section 9(1) of the Act provides that the Family Court shall
endeavour in the first instance, to assist and persuade the parties in arriving at a
settlement in respect of the subject matter of the proceeding, where it is possible to
do so consistent with the nature and circumstances of the case. According to sub-
section (2), in addition to the general power of adjournment, the Family Court may
adjourn the proceeding for such period as it thinks fit to enable attempts to be made
to effect a settlement, if it appears to the Family Court that there is a reasonable
possibility of settlement. It is the statutory duty cast upon family courts to
conciliate the problem and reconcile the differences and settle the family problem
to protect the institution of the family. The proceedings under the Act are informal
and the rigid rules of procedure are not applicable. Section 6 of the Act imposes an
obligation on the State government to determine the number and categories of
counselors, officers and other employees required to assist a Family Court in the
discharge of its functions and provide the family court with such counselors,
officers and other employees, as it may think fit. Section 9 imposes an obligation to
persuade the parties in arriving at a settlement for the dispute and for that purpose
the court can adjourn proceedings. Section 10 relaxes the procedures considerably
as far as the matters before the Family Courts are concerned. The confidentiality of
the partices and procedure is protected by making the proceedings to be heard in-
camera under Section 11. Section 15 reduces the rigidity of recording oral evidence
and permits adducing of evidence of formal character by way of an affidavit
(Section 16).
Jagraj Singh v. Birpal Kaur, AIR 2007 SC 2083
Another important innovative provision is Section 13 of the Act, which
provides that the parties to the dispute shall not have right to be represented by the
legal practitioner. If the court considers necessary, in the interest of justice, the
court may seek assistance of a legal expert as amicus curiae. Legal practitioners are
not totally prohibited. Their necessity is reduced to facilitate face-to-face
negotiations between the disputing parties.
The Law Commission of India in its 59h Report in 1974, stressed the need
of adopting conciliatory approaches to make reasonable efforts at settlement before
commencement of trial of family issues. However, neither the regular courts nor the
family courts could make better use of conciliatory approach in resolving disputes,
mostly because of lack of time, preparation, motivation on the part of courts and the
parties also.

Mediation and Conciliation under the Arbitration and Conciliation Act,

1996
In the modern techniques of dispute resolution of commercial conflicts, emphasis
has drifted from litigation to arbitration. As things can never be static, emphasis is
further sliding from arbitration to other methods of dispute resolution. Mediation
and Conciliation are one of the most important procedures of ADR. Regulation of
arbitration laws by mediation or conciliation is a novelty of the modern arbitration
laws. The drift from arbitration to mediation or conciliation started with the
appearance of conciliation / mediation legislation, which of late has becn
increasingly attracting the attention of the international business community,24
Mediation and conciliation are more economic, convenient, speedy and less formal
mode of dispute resolution.
Madhubhushushi Sridhar, ALTERNATIVE DISPUTE RESOLUTION -
NEGOTLATION AND MEDIATION, 2006, Lexis Nexis, Butterworths, p. 282,
283
Section 30(1) of the Act provides that it is permissible for the arbitral
tribunal to promote settlement of the dispute, with the agreement of the parties. For
promoting the settlement the arbitral tribunal has the discretion to use mediation,
conciliation or any other ADR method. Section 30(2) further provides that if the
parties come to a settlement of dispute inter se, the tribunal shall terminate the
proceedings. Further, on the request of the parties and if the arbitral tribunal has no
objection, it shall record the settlement in the form of an arbitral award on agreed
terms. Such award shall be made in accordance with the requirements of Section 31
expressly stating that it is an arbitral award' and it shall have the same status and
effect as any other arbitral award on the substance of the dispute.
Section 30 gives statutory validity to the jurisdiction of the arbitral tribunal
to promote resolution of disputes by settlement. It is an 'opt out' provision as it
applies with the agreement of the parties. It goes a step further in saying that it is
not incompatible with the arbitration agreement to encourage settlement of the
dispute. It also clarifies that by prompting the parties to come to a settlement, the
tribunal does not seek to bypass the arbitral procedure agreed upon by the parties.
The parties are entitled to settle their disputes at any time and in any manner they
choose. There was however, no provision in the Arbitration Act of 1940 analogous
to this section. Section 30 of the Act of 1996 is modeled on the UNCITRAL Model
Law on arbitration.
Part III of the Act contains statutory provisions relating to settlement of
disputes by conciliation. This Part is modeled on the Conciliation Rules adopted by
the UNCITRAL in 1980, which were conceived primarily in the context of dispute
resolution in international commercial relations. Conciliation in Part-III is
envisaged as an independent procedure. Part-III will apply to conciliation of dispute
arising out of any legal relationship whether contractual or not and where the
parties have chosen to refer their dispute to conciliation. One of the important
innovations is the intent to avoid formal proceedings as is evident from Section 66
of the Act, which provides that the conciliator is not bound by the Code of Civil
Procedure, 1908 or the Indian Evidence Act, 1872. Furthermore, Section 74 has
been added to confer the same status and effect on the settlement agreement as if it
is an arbitral award on agreed terms on the substance of the disputes rendered by an
arbitral tribunal under section 30.
The role of a conciliator under Section 67 is to assist the parties in their
attempt to reach an amicable settlement of their dispute, in an independent and
impartial manner. The conciliator is to be guided by principles of objectivity,
fairness and justice taking into account the rights and obligations of the parties, the
usage of the trade concerned, circumstances surrounding the dispute, and previous
business practice between the parties. The conciliator is required to make proposals
for the settlement under Section 67 (4). Under Section 75, the conciliator has to
keep confidential not only the settlement agreement but also all matters relating to
the conciliation proceedings. Further, under Section 73 when it appears to the
conciliator that there exist elements of a settlement which may be acceptable to the
parties, he shall formulate the terms of a possible settlement and submit them to the
parties for their observations. After receiving the observations of the parties, the
conciliator is also required to authenticate the settlement agreement and furnish a
copy thereof to each of the parties.
The use of Conciliation for settling commercial disputes has increased
considerably in the last two decades. Special conciliation or mediation institutes
have proliferated, providing well-drafted set of rules and offering courses for
training of conciliators or mediators.

Conciliation under the Legal Services Authorities Act, 1987

Another means of ADR which exists in India is the system of Lok Adalats.
Originally, recommended in 1980 by the Committee for Implementing Legal Aid
Schemes (CILAS) constituted by the Government of India. The first Lok Adalat
was organised in 1982 in Gujarat. Since then, Lok Adalats have been functioning in
various parts of India with the active support of some Chief Justices of High Courts
and some judges of the Supreme Court of India. This system has attracted lot of
attention and proved quite successful, so far. These 'courts of people' are mainly
manned by retired judges of High Courts, along with some individuals of
prominence in public life.
Lok Adalats were given a statutory status by the Legal Services Authorities
Act, 1987 which came in force in 1995. Under its provisions, States and District
Legal Services authorities constituted under the Act are empowered to organise
Lok Adalats at such intervals and places and for exercising such jurisdiction and for
such areas as they think fit. A Lok Adalat has the jurisdiction to determine and
arrive at a settlement between the parties to a dispute in respect of any matter
falling within the jurisdiction of any civil, criminal, or revenue court or any tribunal
constituted under any law for the time being in force for the area for which the Lok
Adalat is organised". Lok Adalat is to be guided by legal principles and principles
of justice, equality and fair play." Every award of the Lok Adalat is deemed to be a
civil decree and every award made by Lok Adalat is deemed to be final and binding
on all the parties to the dispute.
The introduction of Lok Adalats has added a new chapter to the disputes
disposition system in India and succeeded in providing a supplementary forum to
the litigants for conciliatory settlement of their disputes. Experience has showed
that it is easier to settle money claims in Lok Adalats. Recently, the Legal Services
Authorities Act 1987 was amended so as to include a new Chapter to provide for
compulsory pre litigation conciliation by setting up Permanent Lok Adalats.
Permanent Lok Adalats, under the Act have jurisdiction over cases relating to the
Public Utility Services such as transport, post, power, water supply, conservation,
sanitation, hospitals, insurance etc. Chapter-VIA of the Legal Services Authorities
(Amendment) Act, 2002 provided for Section 19, Legal Services Authorities Act,
1987 " Section 20(4), Legal Services Authorities Act, 1987 Section 21(1) & (2),
Legal Services Authorities Act, 1987 establishment of Permanent Lok Adalat
(PLA) for the purpose of providing for pre litigation conciliation. The Statement of
objects and Reasons for the amendment states: The major drawback in the existing
scheme of organization of the Lok Adalats under chapter VI of the Act is that the
system of Lok Adalat is mainly based on compromise or settlement between the
parties. If the parties do not arrive at any compromise or settlement, the case is
either returned to the court of law or the parties are advised to seek remedy in a
court of law. This causes unnecessary delay in the dispensation of justice. If Lok
Adalats are given power to decide the cases on merits in case parties fail to arrive at
any settlement this problem can be tackled to a great extent. Further, the cases
which arise in relation to Public Utility Services such as MTNL, DVB etc., nced to
be settled urgently so that people get justice without delay even at pre-litigation
stage and thus most of the petty cases which might not go to the regular courts
would be settled at the pre-litigation stage itself which would result in reducing the
workload of the regular courts to a great extent."
PLA is headed by either former or sitting District Judge or Additional
District Judge or officer of rank higher than District Judge". It will also have two
members having adequate experience in Public Utility Service". The pecuniary
jurisdiction of the PLA shall be upto Rs.10 lakhs". The most innovative provisions
of this chapter is when at a pre-litigation stage, the parties fail to reach an
agreement before the PLA, the PLA shall assume the character of a court and shall
decide the dispute on merits". Every award made by the PLA shall be final and
binding on all parties and shall be by the majority of the persons constituting the
PLA". The purpose for adopting this procedure is to avoid unnecessary delay which
may be there in case the matter goes to regular court where the process will start
from the very beginning. However, as the members of PLA are already well-versed
with the facts and issues of the matter, it can reach a decision in no time.
The inclusion of Chapter VI-A to the Legal Services Authorities Act 1987
was laudable step towards institutionalization of the ADR process. In Abdul Hassan
and National Legal Services Authority Vs Delhi Vidyut Board and Others", the
Delhi High Court while rejecting the argument of the Public Utility Services
(MTNL, DDA, etc) that there was no need to establish Permanent Lok Adalat,
observed that a solitary appearance of parties before a Lok Adalat which is
organised for a day or two may not be adequate for arriving at a settlement. The
need of the hour is to establish Lok Adalats on a permanent and continuous basis.
Apart from this, Chapter-VIA for the first time gave legal recognition to the
application of ADR methods at a pre-litigation stage. The composition of the PLA
is a fair mixture of judicial and non-judicial members so as to do away with the
technicalities of the court procedures while handling the cases. The two non-legal
members also brings with them the expertise needed in dealing with the cases
relating to the Public Utility Services. The establishment of PLA may also reduce
the burden on State exchequer in organizing Lok Adalats periodically and the
money necded in its publicity.
5.4.6 Mediation under the Code of Civil Procedure, 1908
 The emergence of ADR is one of the most significant movements as a part
of conflict mnagement and judicial reform. In recent years, in countries the world
over, courts have shown an increasing willingness to encourage parties to explore
mediation and other ADR techniques before or even after going to trial. In India,
the courts have been using the various provisions of CPC 1908 to encourage
settlement of the disputes like Section 80, Order XXXII, Order XXVI, Order
XXX11A, etc. Recently, by the addition of Section 89, ADR has now become an
integral segment of the modern court system.
AIR 1999 Delhi 88

Section 80 CPC and Order XXVII, Rule 5B, CPC 1908

The provision of Section 80, CPC makes it mandatory to give a two months
notice prior to filing a suit against the government or against a public officer in
respect of act purporting to be done by such public officer in his official capacity.
The object of the notice required by this section is give the Secretary of the State or
the public officer an opportunity to reconsider his legal position and to make
amends or settle the claim, if so advised, without litigation. The section has been
enacted as a measure of public policy and the underlying public purpose is the
advancement of justice and securing of public good by avoidance of unnecessary
litigation."Apart from the duty of the State to negotiate just settlement, a duty is
also casted on the court to make in the first instance every endeavour at settlement
in suits in which government or a public officer in official capacity is a party under
Order XXVII, Rule 56 which was inserted in the Code in 1976. Under our
Constitution, now the government is undertaking number of economic activities in
a vast and widening public sector and hence is being increasingly involved in
disputes with private individuals. The object behind this provision is that in such
suits if positive efforts at settlement are made at the early stages of litigation,
reasonable settlement would be feasible in many cases and the state as well as the
citizens involved in the disputes will be saved from avoidable wastage of public
money and time.
Order XXII, Rule 3, CPC 1908
As a general rule, any matter which can be decided by a court can also be
settled by a compromise. The scheme of this Rule is to avoid multiplicity of
litigation and permit parties to amicably come to a settlement which is lawful, is in
writing and is a voluntary act on part of the parties. The court can be instrumental
in having an agreed compromise effected and finality attached to the same.
Vinay K Gupta, MULLA - CODE OF CIVIL PROCEDURE (Abridged), 2005,
14th ed. Lexis Nexis Worths, p. 394
Ghanshvam Das v. Union of India, AIR 1984SC 1004 and P.P Abu backer v.
Union of India. AIR I972
Order XXXIII, Rule 3 provides that where it is proved to the satisfaction of
the court that a suit has been adjusted wholly or in part by any law full agreements
or compromise in writing and signed the parties or where the defendant satisfies the
plaintiff in respect of the whole or any part of the subject-matter of the suit, the
court shall order such agreement, compromise or satisfaction to be recorded and
shall pass a decree in accordance therewith, so far as it relates to the parties to the
suit, whether or not the subject-matter of the agreement, is the same as the subject-
matter of the suit. However, where it is alleged by one party and denied by the
other that an agreement has been arrived at, the court shall decide this question but
no adjournment shall ordinarily be granted for such decision for this purpose. In
case of an agreement reached between the parties, the court will pass a consent
decree in terms of the settlement. Section 96(3), CPC provides that there can be no
appeal against a consent decree. This provision shows that the Code attaches
finality to the agreement reached between the parties under the supervision of the
court.

Order XXXIIA, CPC 1908

This new Order has been inserted in 19763 to deal with certain suits and
proceeding concerning the family. The ordinary conventional judicial procedure
dominated by the adversary system is not apposite for disputes concerning the
family. For this sensitive area of personal relationship special approach was felt to
be needed, keeping in forefront the objective of family counseling, as a method of
achieving the ultimate object of preservation of the family. Hence, some special
provisions have been inserted this Order highlighting the need for adopting a
different approach when matters concerning the family are at issue including the
need for efforts to bring about an amicable settlement.
Some of the special provisions include Rule 2 which provides that the
proceedings in family matters may be held in-camera Under Rule 3, it is the duty of
the court to make an endeavour, in the first instance, to assist the parties in arriving
at a settlement, if it be consistent with the facts and circumstances of the case. In
order to Facilitate settlement, the court may in its discretion adjourn the
proceedings for such period as it thinks fit. Under Rule 4, the court can also take
the help of professionals engaged in promoting the welfare of the family in the
proceedings. This Order brings the Code in conformity with the Hindu Marriage
Act, 1955 and the Family Courts Act, 1984.
Section 89, CPC and Order X, CPC
Resort to alternative dispute resolution processes was found necessary to
give speedy relief to the litigants and to reduce pendency in courts, through a user-
friendly system of disputes resolution. But the litigants were not resorting to ADR
processes with the desired frequency, either account of ignorance or reluctance or
indifference. Hence, the Parliament inserted Section 89 (as also Order X, Rules IA
to 1C) in the Code of Civil Procedure, to ensure that ADR methods were resorted to
before trial of suits.
Section-89 provides that where it appears to the court that there exist
elements of settlement which may be acceptable to the parties, the court shall
formulate the terms of settlement, give them to the parties for their observation and
after receiving the observations, the court may reformulate the terms of possible
settlement and refer the same for arbitration; conciliation; judicial settlement
including settlement through Lok Adalat; or mediation. It further provides that
where the dispute is referred for arbitration or conciliation, the provisions of the
Arbitration and Conciliation Act, 1996 shall apply and where it has been referred
for judicial settlement or to Lok Adalat, the provisions of the Legal Services
Authorities Act, 1987 shall apply. Where the dispute is referred to mediation then
the procedure as may be prescribed shall follow. Order X, Rule lA provides that
after recording the admissions and denials, the court shall direct the parties to the
suit to opt either mode of settlement outside the court as specified in Section 89.
Rule 1C provides that in case no settlement could be reached, the matter will be
returned to the court for future course of action.
The amending Act 46 of 1999 was challenged before a three judge bench of
the Supreme Court of India in Salem Advocate Bar Association v. Union of India,
Its constitutional validity was upheld. Referring to its scope and object, the
Supreme Court observed:
"It is quite obvious that the reason why Section 89 has been inserted is to try
and see that all cases which are filed in court need not necessarily be decided by the
court itself. Keeping in mind the laws' delays and the limited number of judges
which are available, it has now become imperative that resort should be had to
alternative dispute resolution mechanism with a view to bring to an end to the
litigation between the parties at an early date.
If the parties agree to arbitration and conciliation, the case will go outside
the stream of the court but resorting to judicial settlement or mediation would not
ipso facto take the case outside the judicial stream." Though the Supreme Court
was of the view that there were some "creases" in Section 89, it did, not refer to the
anomalies. It felt that the creases would be ironed out by formulating appropriate
rules and regulations to implement the section. For this purpose, a Committee
headed by a former Judge of the Supreme 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. This
Committee was authorized to consider devising a model case-management formula
as well as rules and regulations which should be followed while taking recourse to
the ADR methods referred to in Section 89. Furthermore, it was decided, that the
Model Rules, with or without notification, which are formulated, may be adopted
the High Courts concerned for giving effect to section 89(2)\(d), CPC 1908".
 This Committee submitted its Report in three parts. Report l contains the
consideration of the various grievances relating to amendments to the Code of Civil
Procedure 1908 and the recommendation of various points raised in connected with
the draft rules for ADR and mediation as envisaged by Section 89 of the Code.

Difference between Conciliation and Mediation - Indian Perspective

In India, under the Act of 1996, the conciliator may request each party to
give him a brief written statement describing the "general nature of the dispute and
the points at issue". He can ask for supplementary statement and document.* The
role of the conciliator under the Act of 1996 is to assist the parties in an
independent and impartial manner. In doing so, the conciliator shall be guided by
the principles of objectivity, fairness, and justice, giving consideration, among
other things, to the rights and objections of the parties, the usages of the of the trade
concerned and the surrounding, the dispute including previous business practices
between the parties." The conciliation is authorized to make proposals for the
settlement of the dispute." Under the Act of 1996, the conciliator can formulate
terms of a possible settlement if he feels there exist elements of a settlement. He is
also entitled to reformulate the terms after receiving the observation of the parties.
These are important provisions which enable the conciliator to not only make
proposals but also formulate and reformulate the terms of a possible settlement.
This is borrowed from the UNCITRAL Model Rules on Conciliation.
Section 65, Arbitration and Conciliation Act, 1996 Section 67(1). Arbitration
and Conciliation Act, 1996
The Mediation and Conciliation Rules, 2004 provides" that the mediator
shall attempt to facilitate voluntary resolution of the disputes by the parties, and
communicate the view of each party to the other, assist them in identifying issues,
reducing misunderstandings, clarifying priorities, exploring areas of compromise
and generating options in an attempt to solve the dispute(s), emphasizing that it is
the responsibility of the parties to take decision which effect them; he shall not
impose any terms of settlement on the parties. The Rules further require" that the
parties be made to understand that the mediator only facilitates in arriving at a
decision to resolve dispute(s) and that he will not and cannot impose any settlement
nor does the mediator give any assurance that the mediation will result in a
settlement. The mediator shall not impose any decision on the parties. Hence, the
role of the 'conciliator' in India is pro-active and interventionist where as the role of
the mediator is only facilitative.
Another significant difference is in the status of the settlement agreement
reached in conciliation under the Act of 1996 and under the Mediation and
Conciliation Rules 2004. Under the provisions of the Act of 1996, if the parties
reach agreement on a settlement of the dispute, they may draw up and sign a
written settlement agreement. If requested by the parties, the conciliator may draw
up, or assist the parties in drawing up, the settlement agreement. The conciliator is
required to authenticate the settlement agreement and furnish a copy thereof to each
of the parties." The settlement agreement is deemed to be an arbitral award on
agreed terms on the substance of the dispute rendered by an arbitral tribunal under
Section-30.S This implies that settlement agreement is at par with the decree of a
court." However, under the Mediation Rules, 2004, when an agreement is reached
between the parties in regard to all the issues in the suit or proceeding or some of
the issues, the same has to be reduced to writing and signed by the parties. The
agreement of the parties has to be submitted to the mediator who is required to
forward the same to the court along with a covering letter. On the receipt of any
settlement, the court has to fix a date of hearing. On such hearing, if the court is
satisfied that the parties have settled their disputes, it shall pass a decree in
accordance with the terms thereof. This implies that a settlement agreement reached
in mediation is not at par with a court decree.

COURT - ANNEXED MEDIATION IN INDIA

There may be various variants of court-annexed mediation programs like
mediation may be mandated as part of the litigation process, mediation program
may be an integral part of the court system, it may be totally separate from the
court system or the connection between the court and mediation program may be
somewhere between these two extremes. In U.S. and U.K, various statutes require
the parties to all civil cases to attend a mediation session. Here, mediators are
employed by the court administration and these mediators offer free services to the
parties for initial few hours (3-4) and in case the parties may continue after these
stipulated fix hours, they are required to pay a determined fee on a sliding scale. In
some countries, statutes provide for sanctions for not participating in good faith in
the mediation meetings. However, in Canada and other countries, the mediation
programs are though highly integrated with the court process but private
practitioners rather than court appointed mediators provide mediation services.
Another model is that court system is connected to mediation services only to the
extent that when a case is filed in the court and one party has requested to mediate
the dispute with the opposite party, the court allows it. However, if the parties fail
to reach a settlement the case will go back to the concerned court for further
proceedings. Yet another model can be mediation is mandated in selected
categories of cases and the court system has an initial screening process where such
categories of cases are directly referred to the court-appointed mediators who
receive honorarium from the court administration. There are varieties of court-
connected and court-annexed mediation. The model adopted in India is a hybrid of
the various variants of court-annexed mediation programs throughout the world. In
India Section 89, CPC 1908 mandates the court to refer matters to any of the four
methods of ADR mentioned in the Section if in the opinion of the court there exists
elements of settlements. In case, the court refers the matter to mediation, the matter
is referred to the Mediation Centre of that Court which has a roster of trained
mediators. These mediators are paid an honorarium on a successfully mediated
case. For the parties, mediation services are free. Mediation Centres offer time-
bound mediation service to the parties. In case a settlement is reached, the matter is
sent to the referral court so that the court can pass a decree in conformity with the
agreement. If no settlement is reached between the parties, then the case is sent
back to the court for future course of action in the court.

Training of the Mediator

 Initially, Institute for the Study and Development of Legal Systems
(ISDLS), California provided the services of professionals for training judicial
officers to become mediators. Three professional trainers from ISDLS trained the
first batch of judicial officers in the art and techniques of mediation. After this, in-
house resources were utilized to train the judge as well as advocate mediators.
Now, periodic training programs are conducted by the Mediation Centres to train
more advocates as well as judicial officers.
Members of the legal profession have much experience of trying to get
disputes resolved, whether through negotiating on behalf of clients out of court or
representing them during litigation. It might be argued that such experience should
equip them well for mediating dispute. However, while that experience is relevant
and careful, there are good reasons why it should be regarded as insufficient. The
task of advocating the case in court as the client's representative is quite different
from facilitating agreement between two or more parties, where no loyalty is owed
to one than to another. While training in negotiation is an essential pre-requisite for
acting as a mediator, some further training in mediation itself is needed to
supplement this. Skillful intervention requires the mediation to be able to identify
specifically what is preventing the parties to move towards a possible agreement,
diagnosing the underlying causes of these difficulties and of the parties' failure to
reach agreement, developing approaches for tackling these causes, and planning
and implementing ways of applying those approaches.
74 M.K. Gandhi. THE STORY OF MY EXPERIMENTS WITH TRUTH,
Chapter 14. Part 2
Any mediation training program's ingredients fall into three main categories:
firstly, the mediation model; secondly, mediator's toolbox, including the
communication skills and interventions that facilitate the most productive
discussion; and thirdly, elements of a training program that allow participants to
develop a new paradigm for approaching conflict and conflict resolution." The
training methodology should include the lecture method to provide a critical
underpinning of theoretical issues and practical component in which activities or
simulation exercises are devised to practice negotiation and mediation skills
followed by a discussion with the rest of the participants and the trainees regarding
simulation exercise. ISDLS advocates a training module of 40 hours and hence
Delhi Mediation Centre has adopted it. This initial training is to be supplemented
by periodical refresher or advance course on various crucial issues regarding
mediation.

Setting up Mediation Centres

The Mediation Centres work through the Judge and advocate mediators. Each,
Centre has a Judge In-charge or Coordinator for looking after the day-to-day
working of the Centre. Running a successful mediation program require proper
coordination. Initially, the Mediation Centres had to face lot of adversity from the
Bar but now the situation has changed and the Bar is fully cooperating in the
successful running of the Centres. Cases can be referred to the Centre at any stage
of the proceedings by the Court. Both the judge and advocate mediators have to
devote one or two days in a week to the Mediation Centre and make themselves
available for mediation services. Each day a fair blending of judge and advocates
mediator has to be done. Judge In-charge has to assign the cases to the mediator
depending upon the nature of cases and area of expertise of judge / advocate
mediator.
All the Mediation Centres have separate rooms for mediators to meet the
parties. Most of the Centres are air-conditioned so as to have a good atmosphere to
reach settlement. Special efforts are made to keep the settings of the Mediation
Centres to be informal and cordial like a Central Hall with good and comfortable
furniture for parties to serve as waiting lounges with magazines and newspapers
apart from light instruments music. Facilities of drinking water and canteen are also
there. Efforts are made to decorate each mediation room with a bunch of fresh
flowers. All this helps in de-stressing the parties. The situation of the Mediation
Centre in the Court complexes is an added advantage as they do not have to travel
to some other place for mediation and also most of the court complexes are very
well connected through metro-rail.
 Mediation Centres provide the valuable human touch at every stage of the
process like calling the parties through telephone to remind them of their date at the
Centre and also this facility may be used by the parties to express their non-
availability on a specified date so as to help the Centre to better adjust its work.
Mediators are also required to inform the parties not only the next date of meeting
but also time so as to prevent the harassment of parties. Mediation Centres has its
own clerical staff and mediators in drafting and typing orders and settlements. The
day, a settlement is reached it has to be returned to the referral court so as to
prevent any tampering with it. The maximum period for which a case can be in
Mediation Centre is 90 days unless an extension is sought by the Mediation Centre
from the Referral Court. So within 90 days, either the case and the connected
matters with the case will be settled or it will be returned for trial in the court. If the
case is settled, the parties are entitled for the refund of the court fees. Even if the
case is not settled at the Centre, at least the issues of the conflict between the
parties are either streamlined or reduced and in both cases, it is helpful in saving the
precious time of the court.
Mediation Centres are using print as well as electronic media for advertising
about the conceptual benefits of mediation. Now-a-days, with the summons of a
case a pamphlet on mediation services is also sent to the parties. The Delhi
Mediation Centre has devised feedback forms which are handed over to all lawyers
and litigants who participate in the mediation process. Many of the participants
have given their views; while most of them are laudatory and positive, some have
given suggestions for improvement. An analysis of these feedback forms has led to
improvements of the program.

LAW COMMISSION OF INDIA ON MEDIATION

Various Reports of Law Commission of India (LCI) has made valuable
suggestions for strengthening the judiciary and realizing the ideal of Access To
Justice to all like 14, 27h, s4th, s8th, 77,80 Report of Law Commission of India.
In its 114 Report, Law Commission of India has suggested establishment of the
Gram Nyayalaya to provide for a new forum for resolution of disputes at the grass-
root level on the model of participatory system of justice. As a result of this, now
Gram Nyayalaya Act, 2008 has been passed. Later in its 129 Report, the LCI was
of the opinion that our justice administration system was highly centralized and
hence dysfunctional. It is basically concentrated on the nature and extent of urban
litigation and recommended essentially alternative and participatory mechanisms of
dispute resolution that would not only reduce the huge congestion of litigation but
would also help in reiterating the public's faith in the justice delivery system.
Among the other recommendations of the LCI, one was the establishment of
Neighbourhood Justice Centres where disputes could be conveniently resolved.
However, these Centres were recommended for disputes relating to Rent Act and
urban property. The approach of the Centre was envisaged to be conciliatory in
nature and composition was three local residents. Another recommendation was the
introduction of Conciliation Courts as is widely practiced in Himachal Pradesh. The
scheme envisaged the setting up of Conciliation Courts earmarked to which all suits
at a preliminary stage after pleadings have been filed are transferred. Conciliation
Court is to be provided over by a judge other than the one who has the jurisdiction
to try the suit in urban areas where there is more than one court. The Conciliation
Court in order to form an opinion regarding the possibility of amicable settlement
goes through the case papers and also verifies the facts from the counsel as well as
the parties so far as necessary and endeavours to evolve a fast and fair resolution of
dispute. The Arrears Committee (1989-1990), constituted by the Government of
India also endorsed the view of the LCI that Conciliation Courts has to be set up all
over the country with power, authority and jurisdiction to initiate conciliation
proceedings in all types of cases at all levels. The Committee was of the view that
conciliation procedure can be made applicable to MACT cases, commercial
disputes, rent cases, service matters, education matters, industrial disputes etc.
Law Commission of India in its 222 Report again emphasized the need for
justice-dispensation through ADR. The LCI discussed in detail the history of ADR
methods in India to show that ADR mechanism has been integral part of Indian
tradition. The LCI also discussed the constitutional mandate to realize the concept
of 'access to justice'. The Report also contain details of the discussion on the
advantages of the present ADR methods being used like Lok Adalat, Permanent
Lok Adalat, Arbitration, Section 89 CPC, 1908, etc. The LCI again in its 230"
Report highlighted the importance of ADR methods as a means to reform the
Judiciary. The LCI discussed the benefits of ADR and recognized that with the
march of time, new demands emerge, which sometimes make the existing systems
outdated or non-functional, requiring it to be replaced by a new one. Law should
also respond to the demands of the society.

CONCLUSION
While mediation has been one of the oldest forms of dispute resolution in
human history, its success as an adjunct to the judiciary is relatively new. Though
formally organized mediation movement is of recent origin but ADR methods,
especially, Conciliation and mediation has long been recognized as appropriate
method of dispute resolution in certain categories of disputes. The Industrial
Disputes Act, 1947 provides for mandatory attempt at conciliation in cases of
industrial disputes before approaching any adjudicatory forum. In family matters,
the courts are under duty to first explore the possibility of settlement between the
parties. Organizing Lok Adalats for petty civil as well as criminal cases have
become a part of the administration of justice. The concept of pre-litigation
conciliation and mediation is institutionalized through the establishment of the
Permanent Lok Adalats and the Mediation Centres by the Delhi Dispute Resolution
Society. Hence, the movement to organized mediation is propelled by both
legislative and judicial initiatives.
A revolution has been brought in institutionalization of court- annexed
mediation after the amendments to the Code of Civil Procedure in 1999 and 2002,
Under the supervision of the Mediation and Conciliation Project Committee,
Mediation Centres are established, all over the country, in the District Court
Complexes. The Mediation Centres have started functioning and debates regarding
who should become mediators; best methods of imparting training; role of courts in
court-annexed mediations; quality control in mediation; working of the Mediation
Centres; ctc. are gaining momentum.
 A
Seminar Report on

Mediation
A reserviour of India

By

Khan Ayan Monis

Department of Law,
Heeralal Yadav Law College,
Sarojini Nagar, Lucknow
 A
Seminar Report on
Mediation
A reserviour of India
Inpartial fulfillment and requirement for the degree of
Bachelor of Law (Honours)

Submitted By :

Khan Ayan Monis

LL.B. (Hon’s)
Vth Year Xth Semester
Heeralal Yadav Law College, Lucknow

Under the Guidance of

Prof. Saloni Chhabra
Heeralal Yadav Law College, Lucknow

Department of Law,
Heeralal Yadav Law College,
Sarojini Nagar, Lucknow
 ACKNOWLEDGMENT

I would take this opportunity to express my deep sense of gratitude towards

Miss Saloni Chabbra Mam who has tendered untiring support to me to complete
the present study, failing which the study would not have been successfully
completed.
I express my deep sense of gratitude to Miss. Saloni Chabbra Mam in the
task of completing this paper would not have been possible, out his able
supervision and timely guidance. I thank our librarian and the other entire person
who have helped me in making this dissertation a success. I wish to extend my
sincere thanks to all the people who guided me in exploring my talent in bringing
out this project as a successful one.

(Khan Ayan Monis)

LL.B. (Hon’s)
V year Xth Semester
th

Roll No. 191840190034

HLY law College, Lucknow
 TABLE OF CONTENTS

List of figures ..................................................................... i-ii

List of table ..................................................................... iii
Acknowledgment
1. CHAPETR
1 INTRODUCTION
1.1 BACKGROUND
1.2 TYPES OF ADR IN INDIA
1.2.1 Arbitration
1.2.2 Mediation
1.2.3 Conciliation
1.2.4 Negotiation
1.2.5 Lok Adalat
1.3 BENEFITS OF ALTERNATIVE DISPUTE RESOLUTION
1.4 EMERGENCE OF MEDIATION IN INDIA
1.5 TYPE OF MEDIATION
1.6 PROCESS OF MEDIATION
1.7 MEDIATION IN THE PRESENT SCENARIO
1.8 MEDIATION V/S LITIGATION
1.9 ADVANTAGE AND DISADVANTAGE
1.10 IMPORTANCE OF COURT AFFECT ARRISTED MEDIIATION
1.10.1 EFFECTIVENESS
2.1 RESEARCH PROBLEMS AND OBJECTIVES
RESEARCH QUESTIONS
2.2 RESEARCH METHODOLOGY
2.3 SCOPE OF THE STUDY
2.4 RESEARCH OBJECTIVES
3.1 CONCLUSION
3.2 CONCILIATION V/S HMD 1955
3.3 CONCILIATION V/S FAMILY COURT ACT
 BIBLIOGRAPHY

BOOKS REFERRED :

1. Batra Hemant K, Mediation: Legitimacy & Practice, EBC Publication, 1st

Edition year of publication- 2020
2. Singh Avtar, Arbitration and Conciliation and Alternative dispute resolution
system, EBC Publication, 12th Edition
3. Dr. Tripathi SC, Alternatice Dispute Resolution (ADR), Central Law
Publication
4. Vinay K Gupta, MULLA - CODE OF CIVIL PROCEDURE (Abridged),
2005, 14th ed. Lexis Nexis
5. Madhubhushushi Sridhar, ALTERNATIVE DISPUTE RESOLUTION -
NEGOTLATION AND MEDIATION, 2006, Lexis Nexis

WEBSITES CONCERNED :

1. [Link]
2. [Link]
3. [Link]
4. [Link]

BAREACT REFFERED :

1. Constitution of India
2. Code of Civil Procedure
3. The Arbitration and Conciliation Act, 1996
4. Hindu marriage Act, 1955
5. Legal service authorities act, 1987