TITEL:- ALTERNATIVE DISPUTE RESOLUTION .

INTRODUCTION:-
Meaning of ADR :-
Definition of Alternative Dispute Resolution:- Alternative
Dispute Resolution (ADR) is the procedure for settling
disputes without litigation, such as arbitration,
mediation, or negotiation. ADR procedures are usually
less costly and more expeditious. They are increasingly
being utilized in disputes that would otherwise result in
litigation, including high-profile labour disputes, divorce
actions, and personal injury claims. One of the primary
reasons parties may prefer ADR proceedings is that,
unlike adversarial litigation, ADR procedures are often
collaborative and allow the parties to understand each
other's positions. ADR also allows the parties to come up
with more creative solutions that a court may not be
legally allowed to impose.
Important Terms:
• Arbitration - A process similar to an informal trial
where an impartial third party hears each side of a
dispute and issues a decision; the parties may agree to
have the decision be binding or non-binding
• Binding and Non-Binding - A binding decision is a ruling
that the parties must abide by whether or not they agree

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with it; a non-binding decision is a ruling that the parties
may choose to ignore
• Arbitration - An impartial person given the power to
resolve a dispute by hearing each side and coming to
decision
• Hearing- A proceeding in which evidence and
arguments are presented, usually to a decision-maker
who will issue ruling
• Mediation - A collaborative process where a mediator
works with the parties to come to a mutually agreeable
solution; mediation is usually nonbinding
FORMAL AND INFORMAL ADVANTAGES AND
DISADVANTAGES OF ADR:-
Advantages of ADR:-
Alternative dispute resolution (ADR)
procedures have several advantages:
• Reduced time in dispute- It takes less time to reach a
final decision.
• Reduced costs in relating to the dispute resolution- It
requires less money i.e. it is cheap.
• Flexibility-Parties have more flexibility in choosing what
rules will be applied to the dispute. They have the
freedom to do so.
• Produce good results- settlement rates of up to 85
percent.

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• Improved satisfaction with the outcome or manner in
which the dispute is resolved among disputants.
• Increased compliance with agreed solutions.
• A single procedure[4]– Parties can agree to resolve in a
single procedure a dispute involving intellectual
property.
• Party autonomy- Because of its private nature, ADR
affords parties the opportunity to exercise greater
control over the way their dispute is resolved than would
be the case in court litigation. In contrast to court
litigation, the parties themselves may select the most
appropriate decisionmakers for their dispute. In addition,
they may choose the applicable law, place and language
of the proceedings. Increased party autonomy can also
result in a faster process, as parties are free to devise the
most efficient procedures for their dispute. This can
result in material cost savings.
• Neutrality– ADR is neutral to the law, language and
institutional culture of the parties, thereby avoiding any
home court advantage that one of the parties may enjoy
in court-based litigation.
• Confidentiality- ADR proceedings are private. Thereby,
the parties can agree to keep the actions confidential.
This allows them to focus on the merits of the dispute
without concern about its public impact.

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• Finality of Awards- Unlike court decisions, which can
generally be contested through one or more rounds of
litigation, arbitral awards are not normally subject to
appeal.
• Enforceability of Awards- The United Nations
Convention for the Recognition and Enforcement of
Foreign Arbitral Awards of 1958, known as the New York
Convention, generally provides for the recognition of
arbitral awards on par with domestic court judgments
without review on the merits. This greatly facilitates the
enforcement of awards across borders.
• Preserves relationship- Helps people cooperate instead
of creating one winner or one loser.

Disadvantages of ADR
Some disadvantages of
alternative dispute resolution are:
• It can be used as a stalling tactic.
• Parties are not compelled to continue negotiations or
mediation.
• Does not produce legal precedents.
• Exclusion of pertinent parties weakens final agreement.
• Parties may have limited bargaining power. Parties do
not have much of a say.
• Little or no check on power imbalances between
parties.
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• May not protect parties’ legal rights. The rights of the
parties may not be protected by alternative dispute
resolution.
• Your case might not be a good fit[5]– Alternative
dispute resolutions resolve only issues of money or civil
disputes. Alternative dispute resolution proceedings will
not result in injunctive orders. They cannot result in an
order requiring one of the parties to do or cease doing a
particular affirmative act.
• There are limits to the discovery process– You should
also be aware that you are generally preceding without
the protections offered parties in litigation, such as those
rules governing discovery. Courts generally allow a great
deal of latitude in the discovery process, which you will
not have in an alternative dispute resolution.
• There is no guaranteed resolution. With the exception
of arbitration, alternative dispute resolution processes
do not always lead to a resolution.
• Arbitration decisions are final. With few exceptions,
the decision of a neutral arbitrator cannot be appealed.
Decisions of a court, on the other hand, usually can be
appealed to a higher court.
• Participation could be perceived as weakness. While
the option of making the proceeding confidential
addresses some of this concern, some parties still want
to go to court “just on principle.”
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• The case might not be a good fit-Alternative dispute
resolutions generally resolve only issues of money or civil
disputes. o There are limits to the discovery process-One
should also be aware that he is generally proceeding
without the protections offered parties in litigation, such

as those rules governing discovery.

DIFFERENT METHODDS OF DISPUTE RESOLUTION:

1. Arbitration
2. Mediation
3. Conciliation
4. Negotiation
5. Lok Adala

1. Arbitration:
The definition of
‘arbitration’ in section 2(1) (a) verbatim reproduces the
text of article 2(a) of the Model Law-‘arbitration means
any arbitration whether or not administered by a
permanent arbitral institution’. It is a procedure in which

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the dispute is submitted to an arbitral tribunal which
makes a decision (an “award”) on the dispute that is
binding on the parties. It is a private, generally informal
and non-judicial trial procedure for adjudicating disputes.
There are four requirements of the concept of
arbitration: an arbitration agreement; a dispute; a
reference to a third party for its determination; and an
award by the third party. The essence lies in the point
that it is a forum chosen by the parties with an intention
that it must act judicially after taking into account
relevant evidence before it and the submission of the
parties. Hence it follows that if the forum chosen is not
required to act judicially, the process it is not arbitration.

TYPES OF ARBITRATION:-

Ad Hoc Arbitration
An ad hoc arbitration is one which is not administered by
an institution and therefore, the parties are required to
determine all aspects of the arbitration like the number
of arbitrators, manner of their appointment, etc.
Provided the parties approach the arbitration in a spirit
of cooperation, ad hoc proceedings can be more flexible,
cheaper and faster than an administered proceeding. The
advantage is that, it is agreed to and arranged by the
parties themselves. However, the ground realities show
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that arbitration in India, particularly ad hoc arbitration, is
becoming quite expensive vis-à-vis traditional litigation.
Institutional Arbitration
An institutional arbitration is one in
which a specialized institution with a permanent
character intervenes and assumes the functions of aiding
and administering the arbitral process, as according to
the rules of that institution. It is important to note that
these institutions do not arbitrate the dispute, it is the
arbitrators who arbitrate, and so the term arbitration
institution is inapt and only the rules of the institution
apply. Incorporation of book of rules in the “arbitration
agreement” is one of the principle advantages of
institutional arbitration. Institutional Arbitration,
throughout the world, is recognized as the primary mode
of resolution of international commercial disputes. It is
an arbitration administered by an arbitral institution.
Further, in many arbitral institutions such as the
International Chamber of Commerce (ICC), before the
award is finalized and given, an experienced panel
scrutinizes it. As a result, the possibilities of the court
setting aside the award is minimal.

Statutory Arbitration:-

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 When a law specifies that if
a dispute arises in a particular case it has to be referred
to arbitration, the arbitration proceedings are called
“statutory arbitration”. Section 2(4) of the Arbitration
and Conciliation Act 1996 provides, with the exception of
section 40(1), section 41 and section 43, that the
provisions of Part I shall apply to every arbitration under
any other act for the time being in force in India.

Fast track arbitration

Fast track arbitration is a time-
bound arbitration, with stricter rules of procedure, which
do not allow any laxity for extensions of time, and the
resultant delays, and the reduced span of time makes it
more cost effective. Sections 11(2) and 13(2) of the 1996
Act provides that the parties are free to agree on a
procedure for appointing an arbitrator and choose the
fastest way to challenge an arbitral award respectively.
The Indian Council of Arbitration (ICA) has pioneered the
concept of fast-track arbitration in India and under its
rules, parties may request the arbitral tribunal to settle
disputes within a fixed timeframe.

Need for Domestic Arbitration

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 Domestic Arbitration takes
place in India when the arbitration proceedings, the
subject matter of the contract and the merits of the
dispute are all governed by Indian Law, or when the
cause of action for the dispute arises wholly in India or
where the parties are otherwise subject to Indian
jurisdiction. In the domestic arbitration, the cause of
action for the dispute should have arisen wholly in India
or the parties are otherwise subject to Indian jurisdiction.
Domestic arbitration is an attractive option for the
settlement of disputes.

In a domestic arbitration:

1) The arbitration takes place in India

2) The subject matter of contract is in India
3) The merits of the dispute are governed by the Indian Law.
4) The procedure of arbitration is also governed by the Indian
Law.
In the Indian Arbitration and Conciliation (Amendment) Bill
2003, the definition of the term domestic arbitration was given
as:

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‘Domestic Arbitration’ means an arbitration relating to a
dispute arising out of legal relationship whether contractual or
not, where none of the parties is:
i) An in individual who is a nationality of , or habitually
resident in, any country other than India;
or
ii) A body corporate which is incorporated in any country
other than India; or
iii) An association or a body of individuals whose central
management and control is exercised in any country
other than India; or
iv) The Government of a foreign country Where the
place of arbitration is in India and shall be deemed to
include international arbitration and international
commercial arbitration where the place of arbitration is
in India. There are conflicting views of the Courts in India
about applicability of Part I in respect of International
Commercial Arbitration where seat of arbitration is not in
India. In a case before the Delhi High Court,
Dominant Offset Pvt. Ltd. v. Adamouske Strojirny
AS, the petitioners entered into two agreements with a
foreign concern for technology transfer and for purchase
of certain machines.
The agreement carried an arbitration clause which
provided that the place of arbitration would be London
and the arbitration tribunal would be International

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Chamber of Commerce in Paris. The parties having
developed a dispute, a petition was filed in the High
Court of Delhi with a prayer for reference to arbitration
in terms of the Arbitration Clause for enforcement of the
agreement. The Court extensively studied the provisions
of the Act so as to see whether it was a matter coming
under Part I of the Act. The Court held that Part I of the
Act applies to International Commercial arbitration
conducted outside India. The Court opined that Section
2(2) which states that “Part I shall apply where the place
of arbitration is in India” is “an inclusive definition and
does not exclude the applicability of Part I to those
arbitrations which are not being held in India”. The Court
also held that the application under Section 11 for the
appointment of arbitrators could be treated as a petition
under section 8 for reference of the parties to
arbitration. This decision was followed in Olex Focas Pvt.
Ltd. Vs. Skodaexport Company Ltd. In this case the High
Court allowed relief under Section 9 (interim measure by
Court) and ruled.
“A careful reading and scrutiny of the provisions of 1996
Act leads to the clear conclusion that sub-section (2) of
Section 2 is an inclusive definition and it does not exclude
the applicability of Part I to this arbitration which is not
being held in India. The other clauses of Section 2 clarify
the position beyond any doubt that this Court in an
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appropriate case can grant interim relief or interim
injunction.” However, Court added that courts should be
extremely cautious in granting interim relief in cases
where the venue of arbitration is outside India and both
parties are foreigners. The Calcutta High Court in East
Coast Shipping v. MJ Scrap took a different view and held
that Part I of the Act would apply only to arbitrations
where the place of arbitration is in India. In a subsequent
decision of Division Bench of the Delhi High Court in
Marriott International Inc v. Ansal Hotels Ltd., Delhi High
Court endorsed the view expressed by the Calcutta High
Court. The Division Bench referred the another decision
reported as Kitechnology N.V. v. Union Gmbh
Plastmaschinen in which the Single Judge of Delhi High
Court held that where none of the parties to the
agreement was an Indian and the agreement was to be
covered by German Law which provided arbitration to be
held at Frankfurt, Section 9 of the Act will have no
applicability and the Court will have no jurisdiction to
pass an interim order in that matter.

International Arbitration
International Arbitration can take place either within
India or outside India in cases where there are
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ingredients of foreign origin relating to the parties or the
subject matter of the dispute. The law applicable to the
conduct of the arbitration and the merits of the dispute
may be Indian Law or foreign law, depending on the
contract in this regard, and the rules of conflict of laws.
The most significant contribution of 1996 Act is the
categorical definition of international commercial
arbitration. Clause(f) of sub-section (1) of section 2 of the
1996 Act defines international commercial arbitration as
arbitration relating to disputes arising out of legal
relationships, whether contractual or not, considered as
commercial under the law in force in India and where at
least one of the parties is:

a) An individual who is a national of, or habitually

resident in or any country other than India
b) A corporate body which is incorporated in any country
other than India
c) A company or an association or a body of individuals
whose central management and control is exercised in
any country other than India
d) The government of foreign country. Thus it is clear
from the above discussion that international arbitration
can take place in India in accordance with the same
procedure as domestic arbitration. Arbitration becomes
‘international’ when at least one of the parties involved
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is resident or domiciled outside India or the subject
matter of the dispute is abroad. In International
arbitration the law applicable may be the Indian Law or a
foreign law, depending on the terms of contract in this
regard and the rules of conflict of laws.

Meaning of international

The international or domestic character of commercial

arbitration may result in the application of a different set
of rules. Several legal systems have special rules for
domestic and international arbitration. The prominent
examples for such nations are Australia, Bermuda,
Canada and also in the US where the Federal Arbitration
Act only applies to international and interstate
arbitration. Other system opts for a unified regulation
such as France England etc. It has been suggested that
the introduction of an International Commercial Act in
the US would make clear that the protective review
standards appropriate for domestic disputes would not
affect cross-border arbitration. It would also clarify the
relationship between federal and state arbitration law.
What makes arbitration an international one? What are
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the criteria employed for such a classification? The
international or domestic character of commercial
arbitration is not to be confused with the domestic or
foreign character of awards for which different regime
for their enforcement exists.

Scope of the term International:-

Any arbitration matter between parties to the arbitration

agreement shall be called an international commercial
arbitration if:
(1) The matter relates to dispute
(2) Such disputes have arisen out of legal relationship
(3) Such legal relationships may or may not be
contractual
(4) The disputes should be those which are considered
commercial under the law in force in India and
5) Where at least one of the parties is;
(i) That which habitually resides abroad, whether a
national of that country or not; or
(ii) A body corporate which is incorporated abroad
(iii) A company or an association or a body of person
whose central management and control is exercised
abroad; or
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(iv) The government of a foreign country. It is for the
arbitrators to determine whether an international
commercial arbitration agreement exists or not. Disputed
question of fact cannot be agitated in a writ petition.

Criteria For Establishing ‘International’ Character

There are three ways of establishing
the international character of arbitration. An arbitration
may be international because;
(a) Its subject matter or its procedure or its organization
is international or
(b) The parties involved are connected with different
jurisdiction; or
(c) There is combination of both

A) The objective criterion:

Dispute with foreign element or of international

character. The objective criterion focuses on the subject
matter of the dispute and the international or national
character of the underlying transaction. Hence the
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international commercial interest or the cross border
element of the underlying contract, or the fact that the
dispute is referred to a genuinely international
arbitration institution, such as the ICC, the LCIA or ICSID
would be sufficient for the arbitration to qualify as
international. The objective criterion is found most
simply in French Law. Article 1492 of the French Code of
Civil Procedure reads Arbitration is international if it
implicates international commercial interest. An almost
verbatim approach is found in Portuguese law. There is a
significant body of French case law relating to the
concept of international transaction.

The most prominent among them

are Renault v. V 2000, Murgue Seigle v. Coflexip,
Chantiers Modernes v. CMGC and Aranella v. Italo-
Equadoriana. The French Courts have taken a liberal
approach in order to delimit the purely economic
definition of international arbitration; arbitration is
international if it results from a dispute involving the
economies of more than one country. It was emphasised
by the Paris Court of Appeal that;

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‘The international nature of arbitration must be
determined according to the economic reality of the
process during which it arises. In this respect all that is
required is that the economic transaction should entail a
transfer of goods, services or funds across national
boundaries, while the nationality of the parties, the law
applicable to the contract or the arbitration, and the
place of arbitration are irrelevant. The approach of the
French Courts has been consistent and has effectively
promoted international commercial arbitration. The
Romanian Code Of Civil Procedure takes a more classical
conflict of laws approach in Article 369. Accordingly an
arbitration taking place in Romania shall be considered
international if it has arisen out of a private law relation
having a foreign element.

B) The subjective criterion:

Diversity of nationality/place of business of the parties.

According to the subjective criterion the focus is on the
different nationality or domicile or place of business of
the parties to the arbitration agreement. It follows that
parties, individuals or companies should come from
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different jurisdiction. The subjective criterion was
employed by previous English Arbitration Law; England
Arbitration Act 1975 section 1(4)(a)(b) and Arbitration
Act 1979 section 3(7)(a)(b). The 1996 Arbitration Act
included a provision (section 85) which distinguished
between domestic and international arbitration but it
was not brought into effect. It is currently applied in
Article 176(1) of the Swiss Private International law. The
provisions of this chapter shall apply to any arbitration if
the seat of the arbitral tribunal is Switzerland and if, at
the time when the arbitration agreement was concluded,
at least one of the parties had neither its domicile nor its
habitual residence in Switzerland. The subjective
criterion may significantly restrict the scope of
international arbitration. An illustration of potential
pitfall can be seen in the example of a distributorship
agreement. Two companies from the same country enter
into a distributorship agreement according to which, one
of them receives world-wide distributorship rights of the
other companies products. Disputes arising out of such
an agreement would be domestic under Swiss law if both
companies have their seat in Switzerland. In contrast
such a dispute is international under French Law.

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C) The Modern Combined Criterion:

The Model Law Approach and other National

Legal Systems. A third approach combines both the
subjective and objective criteria. The new tendency
towards a combined criterion can be found in the Model
Law. According to Art 1(3) arbitration is international if:
a) The parties to an arbitration agreement have, at the
time of conclusion of that agreement, their places of
business in different states; or
b) One of the following places is situated outside the
state in which the parties have their place of business:
i) The place of arbitration if determined in , or pursuant
to, the arbitration agreement
ii) Any place where a substantial part of the obligations
of the commercial relationship is to be performed or the
place with which the subject matter of the dispute is
most closely connected; or
c) The parties have expressly agreed that the subject
matter of the arbitration agreement relates to more than
one country. The Model Law creates a flexible and
effective system for the determination of international
character of arbitration. Its approach consists of
alternative criteria and also includes a conflict of laws
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rule for the connection of legal entities with a particular
legal system. Article 1(3) (
c) has been criticised as too broad as it allows the parties
to a dispute to internationalise it without apparent
reason or any foreign link. Accordingly some countries
like Hungary and Canada when adopting the Model Law
omitted this final case of internationality. Other countries
like Tunisia added as a default criterion the French
approach. While yet other countries such as Hong Kong
offer the parties to arbitration the option of submitting
their dispute to domestic or international arbitration law.
Another successful merger of the subjective with the
objective criteria can be found in the 1994 reform of
Article 832 Italian Code of Civil Procedure. Accordingly if
at the date of signing the arbitration clause or submission
to arbitration at least one of the parties has its domicile
or principal place of business abroad or if a substantial
part of the obligations arising out of the relationship to
which the dispute refers must be performed abroad.
Section 202 US Federal Arbitration Act gives the
definition of the arbitration agreement or arbitration
award falling under the New York Convention. While the
nationality test is used for the purpose of the New York
Convention, the case law of the US Supreme Court
introduces objective criteria. The cohabitation functions
effectively.
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Ad hoc Arbitration
Ad hoc arbitration is arbitration agreed to and arranged
by the parties themselves without recourse to any
institution. The proceedings are conducted and the
procedures are adopted by the arbitrators as per the
agreement or with the concurrence of the parties. It can
be domestic, international or foreign arbitration. In case
of disagreement on the appointment of an arbitrator
under ad hoc arbitration cases, section 11 of the 1996
Act empowers the chief justice of the High Court or Chief
Justice of the Supreme Court as the case may be to
appoint arbitrators. A scheme made by the Chief Justice
may designate a person by name or ex-officio or an
institution which specialises the field of arbitration. This
new provision has really given recognition to the role of
arbitral institutions in India.

Institutional Arbitration
Institutional arbitration is arbitration conducted under
the rules laid down by an established arbitration
organisation. Such rules are meant to supplement

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provisions of arbitration act in matters of procedure and
other details the Act permit. They may provide for
domestic arbitration or for international arbitration or for
both, and the disputes dealt with may be general or
specific in character. In India there are a number of
commercial organisations which provide a formal and
institutional base to commercial arbitration and con
conciliation. There are several merchant associations
which provide for in house arbitration facilities between
the members of such associations and their customers. In
all such cases, the purchase bills generally require the
purchasers and sellers to refer their disputes in respect
of purchase or the mode of payment or recovery thereof
to the sole arbitration of the association concerned,
whose decision is final and binding on the parties. Stock
exchanges in India also provide for in-house arbitration
for resolution of disputes between the members and
others. The Board of Directors of each stock exchange
constitutes the appellate authority for hearing appeals
from the award of the arbitral tribunal. There is an
increasing trend for use of this in-house facility by
members of such institutions. In the international field
many commercial transactions and economic
cooperation agreements between and foreign parties
provide for the settlement of dispute by means of
arbitration either on an ad-hoc basis or an institutional
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basis. Nationality of Arbitration; International Arbitration
in International Convention.

European Convention
Only the European Convention attempts a definition of
an international arbitration when it is setting out its
scope of application. In Art 1(1) (a) it states; 1. This
Convention shall apply: a) To arbitration agreements
concluded for the purpose of settling dispute arising from
international trade between physical or legal person
having, when concluded the agreement, their habitual
place of residence or their seat in different Contracting
States. Both the subjective and the objective criteria are
present. They are to be applied cumulatively.
Unfortunately the first criterion may prevent some
arbitration which is international from falling within the
scope of the Conventions.

New York Convention

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 The New York Convention confines its application to
foreign awards, but makes no attempt to provide a
definition of international arbitration. The rapid
development of international commercial arbitration has
forced national legal systems not only to tolerate
international commercial arbitration, but also provide for
favourable, legal regimes within which it can flourish. It
has been rightly suggested that in 1980s and the 1990s
we have experienced a period of competition amongst
legislators and judiciary; they all tried to attract more
international arbitrations. The two main effects of this
competition were the modernisation and liberalisation of
arbitration regimes and the transfer of the favourable
treatment of international arbitration into domestic
level. This was also reflected in the new trend of unified
regulation of international and domestic arbitration. The
Dutch legislator opted for a unified system with the
argument what is good for international arbitration is
also good for domestic arbitration. The same approach to
a single arbitration was taken in Sweden, Germany and
other countries. In England although different systems
were anticipated in the Arbitration Act, the domestic
rules were not put into effect. The modern unified
arbitration system minimise the importance of
distinction of the national and international arbitration.
An undisputed significant role towards unification and
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internationalization of international commercial
arbitration is ascribed to the success of Model Law.

Model Law And The Term International

Divergent views were expressed as to the

appropriateness of relating sub paragraph (b) (1). Less
than one view the provision should be deleted for
essentially two reasons. One reason was that there was
no justification to qualify a purely domestic relationship
as international simply because a foreign place of
arbitration was chosen. Party autonomy was
unacceptable here since it would enable parties to evade
mandatory provisions of law, including those providing
for exclusive court jurisdiction, except where recognition
or enforcement of the foreign award was later sought in
that State. The other reason was that the provision
arbitration agreement but also the case where it was
determined only later, pursuant to the agreement, for
example by an arbitral institution or arbitral tribunal. It
was felt that the later case created uncertainty as to
what was the applicable law and as to the availability of
the court services before the place of arbitration was
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determined. Under another view only the latter reason
was convincing and therefore sub-paragraph (b)(1)
should be maintained without the words “or pursuant
to”. The prevailing view was to retain the entire provision
of sub paragraph (b)(1). It was noted that the provision
only addressed the question of internationality, i.e.,
whether the (Model) Law for international cases or the
same State’s law for domestic cases applied. It was
thought that the principle of party autonomy should
extend to that question. The Commission in adopting
that view, was agreed, however that the concern relating
to non-arbitrability, which had also been raised in a more
general sense and should be met by a clarifying
statement in a separate paragraph of article 1 along the
following lines:
‘This Law does not affect any other law of this State
which provides that a certain dispute or subject matter is
not capable of settlement of arbitration’. As regards
subparagraphs (b) (ii) and (c), the Commission was
agreed that their respective scope was not easily
determined in a clear manner. In particular, sub
paragraph (c) was regarded as unworkable due to its
vague ambit. While there was some support in
maintaining the provision, though possibly in some
modified form, the Commission after deliberation,
decided to delete the subparagraph(c). However in order
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to balance the reduction in scope due to that
deliberation, it was proposed to add on opting-in
provision, either only to sub paragraph (b)(ii) or as a
replacement for sub paragraph (c). It was thought that
such a provision provided for a more precise test than
the one set forth in paragraph sub paragraph (c).

In response to that proposal a concern was expressed

that such a subjective criterion would enable parties to
freely to label as international a purely domestic case.
Others, however, considered that any such concern was
outweighed by the advantages of a system that provided
certainty to the parties that their transaction would be
recognized as international, a characterization that
should properly fall within the scope of party autonomy.
In response to that consideration the view was expressed
that it was inconceivable that any State which deemed it
necessary to retain a special law for domestic cases
would want to allow parties to evade that system.

CASE LAWS:-

Salem Advocate Bar Association Case,

the apex court approved the model mediation rules and
asked the High Courts to frame such rules for their

29
respective jurisdiction. Hence, we propose the following
clause for mediation referral- “If the court decides to
refer the dispute to mediation then, it may refer to a
person or an institution including courtannexed
mediation and procedure of such mediation shall be
governed by mediation rules of such institution or
respective High Court mediation rules.” Law Commission
of India in its 238th report on the amendment of section
89 of CPC has recommended a similar clause. Mediation
is not recommended, where the is a question of law or
offences involving moral turpitude and fraud.

Afcons Infrastructure Ltd v. Cherian Varkey Construction Co (P) Ltd ,

[“Afcons case”]. is the most recent landmark judgement
on the issue. The wording of the Section 73(1) of the
Arbitration and Conciliation Act is borrowed under this
section defeating the objective with which the section
was revived as was observed by the Court in the Afcons
case.
The terms “shall formulate the terms of settlement”
specified under Section 89 (1) of the Code, imposes a
heavy and unnecessary burden on the courts. It is a
redundant process which further burdens the court and
strikes at the foundation of the ADR system. The right
manner of interpretation of the Section 89 would be if it
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is read with Order X Rule 1-A where the Court may only
direct the parties to refer to ADR forums and no need to
formulate terms of settlement arises.

CONCILIATION
MEANING OF CONCILIATION
DEFINATION:-
The term conciliation is not
defined in the Act. However, simply put conciliation is a
confidential, voluntary and private dispute resolution
process in which a neutral person helps the parties to
reach a negotiated settlement. This method provides the
disputing parties with an opportunity to explore options
aided by an objective third party to exhaustively
determine if a settlement is possible. Like arbitration, the
Act covers both domestic and international disputes in
the context of conciliation. International conciliation is
confined only to disputes of “commercial” nature. As per
the Act, the definition of international commercial
conciliation is exactly similar to that of international
31
commercial arbitration.2 Accordingly, the Act defines
international commercial conciliation as conciliation
proceedings relating to a dispute between two or more
parties where at least one of them is a foreign party.3
The foreign party may be (1) an individual who is foreign
national, (2) a company incorporated outside India, or (3)
the government of a foreign country.

Conciliation under the Civil Procedure Code,1908 (“CPC”)

A 1999 amendment to the CPC enabled the courts to

refer pending cases to arbitration, conciliation and
mediation to facilitate early and amicable resolution of
disputes.10 Before the amendment of the CPC, the Act
did not contain any provision for reference by courts to
arbitration or conciliation in the absence of the
agreement between the parties to that effect. However,
pursuant to the insertion of section 89 in the CPC, a court
can refer the case to arbitration, conciliation, judicial
settlement11 or mediation, “where it appears to the
court that there exist elements of a settlement which
may be acceptable to the parties.” Section 89 of the CPC
empowers the court to formulate the terms of the
settlement and give them to the parties for their
observation and after receiving the observations,

32
reformulate the terms of a possible settlement and refer
the same for arbitration, conciliation, judicial settlement
or mediation. Once a court refers a case to conciliation,
the provisions shall not apply and the parties shall be
bound by the provisions of the Act. This allows the
parties to terminate the conciliation proceedings in
accordance with section 76 of the Act,12 even if the
dispute has not been resolved, thereby rendering the
entire dispute resolution process futile.

Kinds of Conciliation

1 . Voluntary Conciliation- In this method

parties can voluntarily participate in the process of
conciliation for resolving their dispute.
2. Compulsory Conciliation- If parties do not want to take
the opportunity of voluntary conciliation then they can
go for compulsory conciliation. In this method, if the
parties do not want to meet the other party to resolve
the dispute then the process is said to be compulsory.
This method is commonly used in labour cases.

In compulsory arbitration, the parties involved are

required to go through the third party to settle their
dispute. If an arbitration clause is included in a contract,
33
and if the contract itself is valid, the parties must abide
by the clause. Arbitration may also be ordered by a court
as a means to prevent a situation from going to trial, and
the parties must comply or face possible sanctions.
Another possibility is voluntary arbitration. In this
instance, the sides involved agree on their own to use an
outside party, like an arbitration attorney, to help settle
their differences. No contract or law requires this action,
yet deciding to use arbitration can save money, time and
maybe even good will. In business relationships, all of
these are important. If the matter is personal, such as in
a divorce proceeding, voluntary arbitration can be
equally valuable. Whether you are mandated by a
contract or court, or you choose voluntary arbitration,
educating yourself beforehand will help you be prepared
for the process. You can read about arbitration on this
site, and use the resources here to find an arbitration
attorney in your area who specializes in your area of
concern.

Conciliator
Conciliator is the third party who is involved in settling
the dispute of the parties. Generally, there is one
conciliator for the settlement but there can be more than
one conciliator, if the parties have requested for the
34
same. If there is more than one conciliator then they will
act jointly in the matter. Section 64 deals with the
appointment of conciliator which states that if there is
more than one conciliator then the third conciliator will
act as the Presiding Conciliator.

Conciliator - Appointment and qualifications

Conciliator can be appointed by the parties

themselves of their own choice with consensus i.e. both
should agree upon the appointment of the conciliator.
IDRC has a Panel of Conciliators with rich experience in
varied fields. The parties follow any of the following
methods.
(a) The parties themselves may name a conciliator or
conciliators from IDRC Panel.
(b) Each party may appoint one conciliator from IDRC
Panel & may mutually agree on the third conciliator.
(c) The parties may enlist the assistance of a suitable
institution ie IDRC in connection with the appointment of
conciliators. In the case of family court, or
labour court etc, before referring the matter to the court
it is compulsory to consult with the councillor i.e.
conciliator, who are appointed by the government for
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making settlement between the parties before the trial &
on the report of the councillor only, matter is put forth
for trial. Here, Conciliator should not be of a specific
qualification, but he should also not be ignorant of the
subject matter. He can be a expert person of the subject
matter of dispute for e.g. if there is a dispute regarding
construction cost of a building in that case a person can
be a civil engineer, who has the knowledge of building
construction. The important thing, which cannot be
ignored, is that conciliation is not the person who will
decide the matter; rather he is a person who assists the
parties to arrive at amicable settlement, where the
decision is of the parties themselves. Role of conciliator:
The primary role of the conciliator is to assist the parties
in an independent and impartial manner and enable
them to reach an amicable settlement of disputes, unlike
an arbitrator who has an adjudicatory function. In
achieving this role, the A&C Act provides for the
following duties of the Conciliator:
a. To be guided by principles of objectivity, fairness and
justice, giving consideration to the rights and obligations
of the parties, the usages of the trade concerned,
circumstances surrounding the dispute, including any
previous business practices between the parties.
b. To conduct the proceedings in the manner it considers
appropriate, and take into account the circumstances of
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the case, wishes of the parties, including any request by a
party to hear oral statements, and the need for a speedy
settlement of the dispute.
c. To make proposals for a settlement of the dispute at
any stage of proceedings. vii. Not bound by CPC or
Evidence Act:
The conciliator is not bound by Code of Civil
Procedure, 1908 or the Indian Evidence Act, 1872.
viii. Disclosure of information and confidentiality: The
conciliator shall disclose the substance of any factual
information concerning the dispute received from a party
to other party. However, if any information is given
subject to a specific condition that it be kept confidential,
then the conciliator cannot disclose it to the other party.
Conciliator and the parties have to keep all the matters
relating to the conciliation proceedings confidential, and
the confidentiality extends to the settlement agreement
except for the purpose of its implementation and
enforcement.
ix. Restriction to resort to arbitral or judicial proceedings
during conciliation: During conciliation proceedings, the
parties cannot initiate any arbitral or judicial proceedings
in respect of a dispute that is the subject matter of such
proceedings except if in the opinion of that party such
proceedings are necessary for preserving its rights.

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x. Restriction on introduction of evidence in other
proceedings: The parties to a conciliation proceeding
cannot rely on or introduce as evidence in arbitral or
judicial proceedings, irrespective of the fact as to
whether such proceedings relate to the dispute that is
the subject of the conciliation proceedings, the following:
(a) views expressed or suggestions made by a party in
respect of a possible settlement of the dispute;
(b) admissions made by a party in the course of the
conciliation proceedings;
(c) proposals made by the conciliator; and
(d) the fact that the other party had indicated its
willingness to accept a proposal for settlement made by
the conciliator.
xi. Termination of conciliation proceedings:
Conciliation proceedings can be terminated by either
signing of the settlement agreement or written
declaration of the conciliator after consultation with the
parties to the effect that further efforts at conciliation
are no longer justified or written declaration of the
parties addressed to the conciliator to the effect that the
conciliation proceedings are terminated or written
declaration of a party to the other party and the
conciliator, if appointed to the effect that the conciliation
proceedings are terminated. It terminates on the date of

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entering into such settlement agreement or the date of
declaration, as the case may be.
xii. Authentication of settlement agreement: A successful
conciliation proceeding culminates in a settlement
agreement signed by the parties. The conciliator
authenticates the settlement agreement and furnishes a
copy to each party. It is only the agreement that has
been arrived at in conformity with the manner
stipulated, form envisaged and duly authenticated in
accordance with the Section 73 of the A&C Act, that can
be assigned the status of a “settlement agreement”.
xiii. Costs and deposits: The costs of conciliation includes
fee and expenses of the conciliator and the witnesses,
any expert advice requested by the conciliator with
consent of the parties, any assistance provided in
accordance with the A&C Act and any other expenses in
relation to the proceedings. The costs of conciliation
proceedings are borne equally by the parties unless the
settlement agreement provides otherwise, and all other
expenses incurred by a party are borne by that party. The
conciliator fixes the conciliation costs and gives written
notice to the parties on termination of the proceedings.
The conciliator may also direct each party to deposit an
equal amount as an advance for the costs which it
expects will be incurred.

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STAGES IN CONCILIATION:
Part 3 of the Arbitration and Conciliation act, 1996
speaks about Conciliation. According to Wharton’s Law
Lexicon, conciliation is a non-adjudicatory alternative
dispute resolution process which is governed by the
conditions of the Arbitration and Conciliation act, 1996
(26 of 1996).
Step 1: Commencement of conciliation proceedings.
Section 62 of the act talks about the commencement of
the proceedings. In order for the conciliation proceedings
either one of the parties should send a written invitation
to the other party. Only if the other party accepts the
invitation they shall go ahead with the conciliation
proceedings. If the party does not get a reply even after
30 days of sending the invitation, it shall be considered
that the invitation is not accepted.
Step 2: Appointment of conciliators After the parties
have agreed for the conciliation proceedings, the next
step is to appoint an arbitrator. Section 64 talks about
the appointment of arbitrators. If the parties agree they
can appoint a sole conciliator. If the parties agree upon
appointing two conciliators, each party shall appoint one
conciliator each. In case the parties agree upon three
conciliator, each party shall appoint one conciliator each

40
and the parties together may agree upon a third
conciliator, who shall be the presiding conciliator.
Step 3: Submission of written statement to the
conciliator The conciliator may request each of the
parties to provide with a written statement about the
facts relating to the case in hand. It is necessary for both
the parties to submit a written statement to the
conciliator. Along with the conciliator, the parties are
also requested to send the written statement to each
other.
Step 4: Conduct of the conciliation proceedings Sections
67(3) and 69(1) talks about the conduct of conciliation
proceedings. The conciliator may decide to talk to the
parties through written or oral communication. He may
also decide to meet the parties together or separately.
He may conduct the proceedings which seem to be
suitable to the case in hand.
Step 5: Administration assistance Section 68 of the act
talks about the administrative assistance. The parties or
the conciliator may seek administrative assistance from
an institution or a person if required. In order for seeking
for administrative assistance, the consent of the parties
are required.

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NEGOTIATION:
Negotiation may be defined as any form of direct or
indirect communication through which parties who have
conflicting interests discuss the form of any action which
they might take together to manage and ultimately
resolve the dispute between them. Negotiations may be
used to resolve an existing problem or to lay the
groundwork for a future relationship between two or
more parties. It must be noted that there is no
compulsion for either of the parties to participate in the
process of negotiation. The parties have the free will to
either accept or reject the decisions that come out of the
process of negotiation. There is no restriction in the
number of parties that can participate in the process of
negotiation. They can vary from two individuals to the
process involving dozens of parties. Unlike arbitration
and mediation, the outcome of a negotiation is reached
by parties together without resorting to a neutral third
party. The process is flexible and informal also ensures
confidentiality at the choice of the parties. In terms of
procedure, negotiations is probably the most flexible
form of dispute resolution process because it involves
only those individuals or parties who are interested in

42
the matter. They shape the process of negotiation as per
their own needs and at their own convenience. The
chances of reaching a mutually acceptable agreement is
high in this process since the acceptance by all the
parties is ensured. Since the process of negation uses the
interests-based approach instead of the generally used
positional-based approach, it provides a greater
possibility of a successful outcome. As mentioned above,
there is no compulsion for either of the parties to
participate in the process which makes negotiation a
voluntary process. Once an agreement is reached
between the parties, negotiation may also enhance the
relations between them. Apart from all of this, opting for
negotiation over litigation may also reduce the number
of delays and turn out to be less expensive as well.
However, negotiation has some disadvantages as well.
Though negotiation provides a greater possibility of a
successful outcome, if the parties are unequal the those
in a weaker position may be placed at a disadvantageous
position. The parties may terminate the process
whenever they wish to during the proceedings, this may
cause a huge loss of time and money invested in the
process. Negotiation does not ensure the good faith and
trustworthiness of either of the parties. It must also be
mentioned that some issues may not be amenable to
negotiation. Despite all its disadvantages, negotiation is
43
still on a rise as a medium for resolving disputes. It is
definitely a much more time and money saving process
the litigation. It is high time that the process of
negotiation be used globally as a means for resolving
disputes after working on its disadvantages.

The 5 Negotiation Styles are:

1. Competitive
Competitive personalities are results-driven. They are
focussed and assertive in their communication and often
aggressive. Competitive negotiators are strategic thinkers
therefore have very little time for pleasantries.
2. Collaborative Collaborative negotiators are open and
honest, and understand the concerns and interests of the
other party. They like to find creative solutions to make
sure both parties are satisfied.
3. Compromising A compromising negotiator’s main
concern is doing what is fair for both parties and finding
middle ground. They would rather compromise on your
own outcome to satisfy the other party.
4. Avoiding Avoiding personalities really dislike
negotiations! They may try to avoid situations that may
result in conflict as they find them intimidating and
stressful by staying behind the scenes of a negotiation.

44
5. Accommodating Accommodating negotiators spend a
great deal of time building and maintaining relationships
with the other party. They are highly sensitive to the
emotions, relationships and body language within the
negotiation situation.

APPROACHES OF NEGOTITION

Distributive Negotiation or Win-Lose Approach

This is also called competitive, zero sum, or claiming
value approach. This approach is based on the premise
that one person can win only at the expense of the other.
It has the following characteristics:
(i) One side ‘wins’ and one side ‘loses’.
(ii) There are fixed resources to be divided so that the
more one gets, the less the other gets.
(iii) One person’s interests oppose the other’s.
(iv) The dominant concern in this type of bargaining is
usually to maximize one’s own interests.
(v) The dominant strategies in this mode include
manipulation, forcing and withholding information.
Strategy to be used: In this mode, one seeks to gain
advantage through concealing information, misleading or

45
using manipulative actions. Of course, these methods
have serious potential for negative consequences. Yet
even in this type of negotiation, both sides must feel that
at the end the outcome was the best that they could
achieve and that it is worth accepting and supporting.
The basic techniques open to the negotiator in this kind
of approach are the following:
• Influence the other person’s belief in what is possible.
• Learn as much as possible about the other person’s
position especially with regard to resistance points.
• Try to convince the other to change his/her mind
about their ability to achieve their own goals.
• Promote your own objectives as desirable, necessary,
ethical, or even inevitable. Lose-Lose Approach This
negotiation approach is adopted when one negotiating
partner feels that his own interests are threatened and
he does all he can to ensure that the outcome of the
negotiation is not suitable to the interests of the other
party as well. In the bargain, both the parties end up
being the loser. This type of situation arises when the
negotiating partners ignore one another’s needs and the
need to hurt each other outweighs the need to find some
kind of an acceptable solution. This is the most
undesirable type of outcome and hence this negotiation
approach is best avoided.

46
Compromise Approach
This approach provides an outcome which is some
improvement over the loselose strategy outcome. To
avoid a lose-lose situation, both parties give up a part of
what they had originally sought and settle for something
less than that. A compromise is the best way out when it
is impossible for both parties to convince each other or
when the disputed resources are limited.

Integrative Negotiation or Win-Win Approach

This negotiation approach is also called as

collaborative or creating value approach. It is superior to
all negotiation approaches. It results in both the parties
feeling that they are achieving what they wanted. It
results in satisfaction to both the parties. It has the
following characteristics.
PHASES OF NEGOTIATION:
1. Planning and fact-finding phase
2. Opening phase
3. Discussion phase
4. Proposal phase
5. Bargaining phase
6. Closing phase
7. After Decision phase

47
MEDIATION:
Mediation in India is a voluntary process where the
disputing people decide to mutually find a solution to
their legal problem by entering into a written contract
and appointing a mediator. The decision-making powers
remain with the disputing parties, with the mediator
acting as a buffer to bring them to an understanding. The
parties can hire ADR lawyers to represent them before
the mediator and explain the situation in a professional
way. The difference between arbitration and mediation
are that arbitration is a more formal process than
mediation. An arbitrator needs to be formally appointed
either beforehand or at the time of need. A mediator can
be anyone, of any designation, can be appointed formally
or casually depends on the wish of the parties. The
mediation law in India has been made user friendly and
pretty flexible.

Mediation India are divided into two categories

which are commonly followed:
1. Court referred Mediation:
The court may refer a pending case for mediation in India
48
under Section 89 of the Code of Civil Procedure, 1908.
This type of mediation is frequently used in Matrimonial
disputes, particularly divorce cases.
2. Private Mediation: In Private Mediation, qualified
personnel works as mediators on a fixed-fee basis.
Anyone from courts, to the general public, to corporates
as well as the government sector, can appoint mediators
to resolve their dispute through mediation.

Process of Mediation in India

In most cases, people voluntarily opt for mediation to

mutually resolve their legal issue, making mediation in
India a party-centric and neutral process. A third party
i.e. a mediator is appointed who acts unbiasedly in
directing the parties to amicably resolve their issues.
Mediation employs structured communication and
negotiation where people put their issues and solutions
for them in front of each other with the help of a
mediator. The person can be anyone the parties have
chosen, or an ADR lawyer agreed on by the parties. The
mediator then helps them to reach a conclusion based
on their agreed upon terms. As it is a voluntary process
and the parties retain all the rights and powers, any party
can withdraw from the process of mediation at any
phase without stating a reason. Mediation encourages
49
the parties to participate in dispute resolution actively
and directly whereby they explain the facts of their
dispute, lay down options or ways to resolve the dispute
and make a final decision by coming to a settlement. The
mediation process in India follows all the general rules of
evidence and, examination and cross-examination of
witnesses. To know all the legal rights you have over the
issue, you can discuss with your ADR lawyer how you can
put up your demands and negotiate it with the other
party. One of the primary benefits of mediation in India is
that it is a completely private method of dispute
resolution. Only the disputing parties and the mediator
are involved, making the affairs of the parties personal
and private. The mediator is an impartial and
independent third party, who helps the parties in finding
their own solution. All statements made during the
process of mediation in India cannot be disclosed in civil
proceedings or any other place without the prior consent
of all parties in writing. In Mediation in India, the
mediator works together with parties to facilitate the
dispute resolution mediation process and does not
adjudicate a dispute by imposing a decision upon the
parties. A mediator’s role is both facilitative and
evaluative. A mediator facilitates when he manages the
interaction between the parties, encourages and
promotes communication between them and manages
50
interruptions and outbursts by them and motivates them
to arrive at an amicable settlement. Process of Mediation
in India is completely confidential as any information
furnished by any party and a document prepared or
submitted is inadmissible and sealed. Any admission
made during mediation cannot be used in any other
court case and any information provided to the mediator
cannot be disclosed to the other party unless the other
party specifically permits the mediator to do so. The
mediator cannot be called as a witness to testify in any
court case and cannot disclose any information related to
the proceedings. Mediation as an alternative dispute
resolution process has been effectively used in
matrimonial disputes and corporate affairs to find a
prompt solution which is not only time-saving and cost-
effective but also keeps the entire dispute resolution
process private. The process of mediation in India is
flexible as it works two-ways by helping disputing parties
to mutually resolve their issue and reducing the burden
of pending cases on the courts.

CHARACTERISTICS OF MEDIATION:

The key feature of mediation is that it is controlled

entirely by the parties themselves. They not only choose
to enter into mediation, but they also retain control over
51
the process throughout and they elect the terms of the
settlement. Mediation has a number of characteristics
and benefits which distinguish it from other forms of
dispute resolution: Voluntary – unless specifically
provided in an agreement, parties enter mediation
voluntarily and can withdraw at any point during the
process; Private & Confidential – unless agreed by the
parties, what is discussed during mediation remains
private and confidential. Information cannot be shared
and both parties will be required to sign a confidentiality
agreement prior to the commencement of the
mediation. Any information provided to the mediator in
a private meeting with one party will be kept confidential
unless it is agreed that it can be shared with the other
party; Change of focus – mediation looks forward and
end encourage parties to move on from the history and
focus on the future; User Friendly – Mediation is not and
should not be treated as a quasi-judicial process. It has a
number of distinct advantages over the court process:
• It is not imposed and takes place at a time and location
agreed by the parties;
• It provides remedies for resolving disputes that may
not be available by pursuing legal proceedings;
• It is informal and flexible allowing for a combination of
joint and individual meetings;

52
• All parties participate and it is not coloured by “legal
speak” or involve cross examination;
• It is quick to arrange and people focused;
• It allows parties to be open, provide their views and air
strong feelings in a neutral setting directly to each other;
• Avoids unnecessary legal costs;
• Improves the channels of communication and
understanding between the parties thus preserving
relationships;
• It increases the chances of a mutually beneficial
outcome for all parties;
• It does not require you to disclose everything;
• It is much less stressful than going to court.

ETHICAL ISSUES IN MEDIATION:

Ethical issues in mediation are typically associated

with confidentiality and conflict of interest. However
there are a broader range of challenges we face that
involve a much wider range of actors. This paper will
consider the role of those challenges and the application
of those choices in mediation related to: The actions of
the mediator guided by Model Standards. The actions of
the parties guided by community norms The mediation
process guided by the ground rules The outcome guided
by principled decision making Ethics is the process of
53
determining what one considers right and wrong actions.
This may sound easy, but in reality it's a complicated
task. Right and wrong are dictated by one’s perspective
and may vary according to culture, moral climate, and
individual circumstance. What may be the right principle
or action for one party may be absolutely wrong for
another. To help navigate through this ambiguity, we
need some guidelines for decision-making and action.
Due to the large number of considerations involved in
many decisions, ethical decision support systems have
been developed to assist decision makers in considering
the implications of various courses of action. They can
help promote the integration of virtues and principles
into the decision. Mature ethical reasoning is generally
defined by those who recognize the concerns of others,
as opposed to those with less mature thinking, who focus
only on themselves. This should sound familiar as the
principles of transformative mediation. Practicing ethical
reflection is a necessary framework for promoting
maturity in ethical thinking. This framework involves
using values and reciprocity. Values are beliefs (virtues)
or standards (principles) and come into practice through
virtue ethics and principle ethics. Reciprocity is balancing
the needs of the parties. Ethical decision-making can be a
profoundly simple skill that can become a compass for
guidance. Ethics should answer the questions: Who do I
54
want to be (virtue ethics)? What shall I do (principle
ethics)? And how does it affect others (reciprocity)? A
unified paradigm could combine ethical theories into:
• the belief there are primary moral principles
(objectivism)
• within a variety of individual actions that can be taken
(subjectivism, pluralism)
• that are bounded by acceptable limits (relativism)
• based on universal virtues (universalism)
• shared by all people (relativism).

MEDIATION IN INDIA:

Mediation is an age old process

of dispute resolution practiced since Vedic period. It is a
low cost, keeping the matters, especially family matters
secret among three parties, two parties and the
mediator. Moreover the solution is not imposed on any
party, it is a solution that both the parties agreed to. It,
thus gives an effective solution in a peaceful manner.
Alternate Dispute Resolution method of resolving the
disputes is relatively new trend in India. The mediation
process in India is not a newly invented procedure for

55
dispute redressal, it is an age old process since Vedic
period. It is beneficial for both the sides - the courts are
being a bit less burdened with cases, and the parties are
getting their issue resolved quickly with less hassles and
in a smoother way. Thus, there has been made an
important position for mediation in Indian Law. The
difference between taking a matter to litigation and
taking it for mediation process, is that in litigation, there
is a blame game and the blames are to be proved,
depending that the Court shall give a solution; and in
Indian mediation, the matter gets resolved through
negotiation, where the solution is sought with the
consent of the parties after considering the demands of
both the sides. The alternate dispute resolution India
consist of following types of adr in India - arbitration,
conciliation, negotiation and mediation. Mediation in
India is the most popular method among all the three
processes. International Commercial Mediation
UNCITRAL recognized the value of conciliation or
mediation, an interchangeable term used to adapt to the
actual and practical use, as a method of amicably settling
disputes arising in the context of international
commercial relations and responded by adopting the
UNCITRAL Conciliation Rules (1980), which offer an
internationally harmonized set of procedural rules for the
conduct of conciliation proceedings. Further, in the
56
context of recognition of the increasing use of
conciliation as a method for settling commercial
disputes, the UNCITRAL Model Law on International
Commercial Conciliation (2002) was initially developed
and later amended by the UNCITRAL Model Law on
International Commercial Mediation and International
Settlement Agreements Resulting from Mediation (2018).
It complements the United Nations Convention on
International Settlement Agreements Resulting from
Mediation, which opened for signature in Singapore on 7
August 2019. The Convention will further enhance the
use of mediation and foster access to justice. Currently,
UNCITRAL is working on updating the UNCITRAL
Conciliation Rules (1980) and preparing notes on

organizing mediation proceedings.

CONCLUSION:-
With the advent of the
alternate dispute resolution, there is new avenue for the
people to settle their disputes. The settlement of
disputes in Lok Adalat quickly has acquired good
popularity among the public and this has really given rise
to a new force to ADR and this will no doubt reduce the
57
pendency in law Courts. There is an urgent need for
justice dispensation through ADR mechanisms. The ADR
movement needs to be carried forward with greater
speed. This will considerably reduce the load on the
courts apart from providing instant justice at the door-
step, without substantial cost being involved. If they are
successfully given effect then it will really achieve the
goal of rendering social justice to the parties to the
dispute.

REFERANCE:-
1. ADR TEXT BOOK :- Dr. S.C. Tripathi
2.http://indiakanoon.in
3. http://ipleaders.in

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