Professional Documents
Culture Documents
Justice Delivery System in India
Justice Delivery System in India
In fact, the Code of Criminal Procedure, 1973 (Cr. P.C.) lays out the Procedural
Mechanisms for the Prosecution of Criminal Actions, allowing for the creation of
criminal courts, for the execution of police inquiries and convictions, and for the
operation of criminal trials and inquiries. Typically speaking, this is the Cr. P.C. All
the other laws are fairly comprehensive to accommodate certain cases. Nevertheless,
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the criminal justice system in India is focused on a complicated network of laws and
common law.
The common law framework gives judges the right to view the laws applied to a
specific case in such a manner as to bring about the most fair and lawful result. The
common law is influenced by subsequent judicial readings of the legislation and by
the legal principles of Stare Decisis (compliance with the previous case). And
whether there's a particular piece of Legislation does not clearly regulate or clarify a
particular topic, judges are free to focus on common law to decide the most
appropriate and relevant laws. However, it should be remembered that the common
law exists only in certain cases where the government has not spoken and should thus
never be enforced in clear contrast to a single act of legislation.
· LEGISLATIVE BRANCH
· JUDICIAL BRANCH
· THE EXECUTIVE BRANCH
THE EXECUTIVE :-
· Executive authority is granted to presidents, governors, and mayors.
· Carries out (executes) a variety of official actions.
· Holds the force of nomination and pardon.
· They will contribute to attempts to strengthen criminal justice.
· Provides guidance for the prevention of crime.
THE JUDICIARY :-
· The Guilt of People associated with Crime.
· Interpretation of the law.
· Administers the criminal liability process determined.
THE LEGISLATIVE :-
· Defines the unlawful behavior.
· Establishes penalties.
· Passes the rules regulating criminal prosecutions.
· Provide support to criminal enforcement departments.
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2. Public Interest Litigation
Public interest Litigation (PIL) means litigation filed in a court of law, for the
protection of “Public Interest”. Any matter where the interest of the public at large is
affected can be redressed by filing a Public Interest Litigation in a court of law such as
Pollution, Terrorism, Road safety, Constructional hazards, etc.
The expression ‘Public Interest Litigation’ has been borrowed from American
jurisprudence, where it was designed to provide legal representation to
previously unrepresented groups like the poor, the racial minorities,
unorganized consumers, citizens who were passionate about the environmental
issues, etc.
PIL is not defined in any statute or in any act. It has been interpreted by judges
to consider the intent of the public at large. It is the power given to the public
by courts through judicial activism. Read in detail on the Judicial Activism on
the linked page. However, the person filing the petition must prove to the
court’s satisfaction that the petition is being filed for public interest and not just
as a frivolous litigation by a busy body.
Some of the matters which are entertained under Public Interest Litigation are
Neglected Children, Bonded Labour matters, Atrocities on Women, Non-
payment of minimum wages to workers, exploitation of casual workers, food
adulteration, Environmental pollution, and disturbance of ecological balance,
Maintenance of heritage and culture, etc.
A Public Interest Litigation (PIL) is introduced in a court of law not by the aggrieved
party but by a private party or by the court itself.
PILs have become a potent tool for enforcing the legal obligation of the
executive and the legislature.
The chief objective behind PILs is ensuring justice to all and promoting the
welfare of the people.
It is generally used to safeguard group interests and not individual interests, for
which Fundamental Rights have been provided.
The Supreme Court of India and the High Courts have the right to issue PILs.
The concept of PILs stems from the power of judicial review.
The concept of PILs has diluted the principle of locus standi, which implies
that only the person/party whose rights have been infringed upon can file
petitions.
It has most ideally and commonly been used to challenge the decisions of
public authorities by judicial review, to review the lawfulness of a decision or
action, or a failure to act, by a public body.
PILs have played an important role in India’s polity. They have been
responsible for some landmark judgements in India such as the banning of the
instant triple talaq, opened up the doors of the Sabarimala and the Haji Ali
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shrines to women, legalised consensual homosexual relations, legalised passive
euthanasia, and so on.
It is an important tool to make human rights reach those who have been denied
rights.
It democratizes the access of justice to all. Any citizen/agency who is capable
can file petitions on behalf of those who cannot or do not have the means to do
so.
It helps in judicially monitoring state institutions like prisons, asylums,
protective homes, etc.
It is an important tool in judicial review.
At present, only judges have the power to dismiss a petition. The Registry of the SC or
HC only ensures that the technical requirements of filing a petition are fulfilled. As a
result of which petitions are admitted to the court irrespective of the merits of the case.
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3. Alternate Dispute Resolution(ADR) System- Objectives, Meaning
and Advantages
Meaning: The process by which disputes between the parties are settled or brought to
an amicable result without the intervention of Judicial Institution and without any trail
is known as Alternative Dispute Resolution (ADR.
ADR offers to resolve all type of matters including civil, commercial, industrial and
family etc., where people are not being able to start any type of negotiation and reach
the settlement.
Generally, ADR uses neutral third party who helps the parties to communicate, discuss
the differences and resolve the dispute.
It is a method which enables individuals and group to maintain co-operation, social
order and provides opportunity to reduce hostility.
ADR is a mechanism of dispute resolution that is non adversarial, i.e. working
together co-operatively to reach the best resolution for everyone.
ADR can be instrumental in reducing the burden of litigation on courts, while
delivering a well-rounded and satisfying experience for the parties involved.
It provides the opportunity to "expand the pie" through creative, collaborative
bargaining, and fulfill the interests driving their demands.
Objective of ADR
To deal with the situation of pendency of cases in courts of India, ADR plays a
significant role in India by its diverse techniques.
Alternative Dispute Resolution mechanism provides scientifically developed
techniques to Indian judiciary which helps in reducing the burden on the courts.
ADR provides various modes of settlement including, arbitration, conciliation,
mediation, negotiation and lok Adalat. Here, negotiation means self-counseling
between the parties to resolve their dispute but it doesn’t have any statutory
recognition in India.
ADR is also founded on such fundamental rights, article 14 and 21 which deals with
equality before law and right to life and personal liberty respectively.
ADR’s motive is to provide social-economic and political justice and maintain
integrity in the society enshrined in the preamble.
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ADR also strive to achieve equal justice and free legal aid provided under Article 39-
A relating to Directive Principle of State Policy (DPSP).
ADR has proven successful in clearing the backlog of cases in various levels of the
judiciary.
Lok Adalats alone have disposed more than 50 lakh cases every year on average in the
last three years.
But there seems to be a lack of awareness about the availability of these mechanisms.
The National and State Legal Services Authorities should disseminate more
information regarding these, so they become the first option explored by potential
litigants.
Advantages of Alternative Dispute Resolution
Less Time Consuming: people resolve their dispute in short period as compared to
courts
Cost effective method: it saves lot of money if one undergoes in litigation process.
It is free from technicalities of courts; here informal ways are applied in resolving
dispute.
People are free to express themselves without any fear of court of law. They can
reveal the true facts without disclosing it to any court.
Efficient way: there are always chances of restoring relationship back as parties
discuss their issues together on the same platform.
It prevents further conflict and maintains good relationship between the parties.
It preserves the best interest of the parties.
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4. Types of ADR System
i.Arbitration
The dispute is submitted to an arbitral tribunal which makes a decision (an "award")
on the dispute that is mostly binding on the parties.
It is less formal than a trial, and the rules of evidence are often relaxed.
Generally, there is no right to appeal an arbitrator's decision.
Except for some interim measures, there is very little scope for judicial intervention in
the arbitration process.
ii.Conciliation
A non-binding procedure in which an impartial third party, the conciliator, assists the
parties to a dispute in reaching a mutually satisfactory agreed settlement of the
dispute.
Conciliation is a less formal form of arbitration.
The parties are free to accept or reject the recommendations of the conciliator.
However, if both parties accept the settlement document drawn by the conciliator, it
shall be final and binding on both.
iii.Mediation
In mediation, an impartial person called a "Mediator" helps the parties try to reach a
mutually acceptable resolution of the dispute.
The mediator does not decide the dispute but helps the parties communicate so they
can try to settle the dispute themselves.
Mediation leaves control of the outcome with the parties.
iv.Negotiation
A non-binding procedure in which discussions between the parties are initiated
without the intervention of any third party with the object of arriving at a negotiated
settlement to the dispute.
It is the most common method of Alternative Dispute Resolution.
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Negotiation occurs in business, non-profit organizations, government branches, legal
proceedings, among nations and in personal situations such as marriage, divorce,
parenting, and everyday life.
V.Lok Adalat
An interesting feature of the Indian legal system is the existence of voluntary agencies
called Lok Adalats (Peoples' Courts).
The Legal Services Authorities Act was passed in 1987 to encourage out-of-court
settlements, and
the new Arbitration and Conciliation Act was enacted in 1996.
Lok Adalat or "People's Court" comprises an informal setting which facilitates
negotiations in the presence of a judicial officer wherein cases are dispensed without
undue emphasis on legal technicalities.
The order of the Lok-Adalat is final and shall be deemed to be a decree of a civil court
and shall be binding on the parties to the dispute.
The order of the Lok-Adalat is not appealable in a court of law
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5. Other amicable Settlement Process- Lok Adalat
Lok Adalat is one of the alternative dispute redressal mechanisms, it is a forum where
disputes/cases pending in the court of law or at pre-litigation stage are settled/
compromised amicably. Lok Adalats have been given statutory status under the Legal
Services Authorities Act, 1987. Under the said Act, the award (decision) made by the
Lok Adalats is deemed to be a decree of a civil court and is final and binding on all
parties and no appeal against such an award lies before any court of law.
If the parties are not satisfied with the award of the Lok Adalat though there is no
provision for an appeal against such an award, but they are free to initiate litigation by
approaching the court of appropriate jurisdiction by filing a case by following the
required procedure, in exercise of their right to litigate.
There is no court fee payable when a matter is filed in a Lok Adalat. If a matter
pending in the court of law is referred to the Lok Adalat and is settled subsequently,
the court fee originally paid in the court on the complaints/petition is also refunded
back to the parties. The persons deciding the cases in the Lok Adalats are called the
Members of the Lok Adalats, they have the role of statutory conciliators only and do
not have any judicial role; therefore they can only persuade the parties to come to a
conclusion for settling the dispute outside the court in the Lok Adalat and shall not
pressurize or coerce any of the parties to compromise or settle cases or matters either
directly or indirectly.
The Lok Adalat shall not decide the matter so referred at its own instance, instead the
same would be decided on the basis of the compromise or settlement between the
parties. The members shall assist the parties in an independent and impartial manner
in their attempt to reach amicable settlement of their dispute.
Lok Adalat is a system of a dispensation of justice which has come into existence to
grapple with the problem of giving cheap and speedy justices to the people. Lok
Adalat as the very name suggests means people’s court. Lok stands for people and the
Adalat means court.
Nature and Scope: Generally speaking, Lok Adalat is not a court in its accepted
connotation. The difference between Lok Adalat and law court is that the law court
sets at its premises where the litigants come with their lawyers and witnesses goes to
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the people to delivers justice at their door step. It is a forum provided by the people
themselves or by interested parties including social activities or social activist legal
aiders, and public spirited people belonging to every walk of life. It is just a firm
forum provided by the people themselves for enabling the common people to ventilate
their grievances against the state agencies or against other citizens and to seek a just
settlement if possible.
The basic philosophy behind the Lok Adalat is to resolve the people dispute by
discussion, counseling, persuasion and conciliation so that it gives speedy and cheap
justice, mutual and free consent of the parties. In short it is a party’s justice in which
people and judges participate and resolve their disputes by discussion, persuasion and
mutual consent.
Types of cases at Lok Adalat: The types of cases dealt with generally are:
Mutation of land cases.
Compoundable criminal offences.
Family disputes.
Encroachment on forest lands.
Land acquisition disputes.
Motor accident claim, and
Cases which are not sub-judice.
Resources and achievement of Lok Adalat: Lok Adalat can only expect gratitude of
the people in distress in return. They must devote time for the cause of social justice
and dedicate their service for its success. Lok Adalats are generally organized in the
premises of courts. Lok Adalat can work as real good substitutes for setting cases
which are pending in superior courts. Encouraged by the response that Lok Adalat
have been receiving at the district level, the state legal aid boards have started
organizing Lok Adalats for cases pending in the High Courts.
The Lok Adalat has also been organized even for the cases pending in the Supreme
Court.
Lok Adalats are known as Peoples festivals of justice because settlements are not
always necessarily according to legal principles settlements have an eye mainly on;
Social goals like ending quarrels
Restoring family peace
Providing succor for destitute.
Organization of Lok Adalat (Sec. 18)
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The State authority or district authority or the High Court legal services committee or
as the case may be; Tehsil legal services committee may organize Lok Adalat at such
intervals and places and for exercising such jurisdiction and for such areas as it thinks
fit. 2. Every Lok-Adalat organized for an area shall consist of such number of;
a) Serving or retired on judicial officer, and
b) Other person of the area as may be specified by the state authority or the district
authority or the High Court legal services committee or as the case may be, the Tehsil
legal services committee organizing such Lok Adalats.
The experience and qualifications of persons. Referred to in clause (b) of sub sec. (2)
for Lok Adalats shall be such as may be prescribed by the government in consultation
with the chief justice of the High Court.
Lok Adalats shall have jurisdiction to determine and to arrive at a compromise or
settlement between the parties to a dispute in respect of;
a) Any case pending before the court
b) Any matter which is falling within the jurisdiction of and is not brought before any
court for which the Lok Adalat is organized.
Provided that the Lok Adalat shall have no jurisdiction in respect of any matter or case
relating to an offence not compoundable under any law.
Cognizance of cases by Lok-Adalat (Sec. 19)
Wherein any case referred in clause (1) of sub sec. (4) of sec. 18
i) (a) The parties thereof agree; or
(b) One of the parties there of makes an application to the court of referring the case to
the Lok Adalat for settlement and if such court prime facie satisfy that there are
chances of such settlement, or
ii) That the court is satisfied that the matter is an appropriate one to take cognizance of
by the Lok Adalat; the court shall refer the case to the Lok Adalat. Provided that no
case shall be referred to the Lok-Adalat under sub-clause (b) clause;
by such court after giving a reasonable opportunity of being heard to the parties.
Not with standing anything contained in any other law for the time being in force the
authority or committee organizing the Lok Adalat under sub sec. (1) of sec. 18 may on
the receipt of application from any of the parties to any matter referred to in clause (h)
of sub sec. (4) of sec. 18, that such matter needs to be determined by a Lok Adalat, for
determination.
Provided that no matter shall be referred to Lok-Adalat except after giving a
reasonable opportunity of being heard to the other party.
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When any case is referred to a Lok Adalat under sub sec. (1) or where a reference has
been made to its under sub sec. (2), the Lok Adalat shall proceed to dispose of the case
or matter of case and arrive at the compromise or settlement between parties.
Every Lok Adalat shall, while determining any reference before it under this act, act to
the utmost expedition to arrive at compromise or settlement between the parties and
shall be guided by the principles of justice, equality fair play and other legal
principles.
Where no reward is made by the Lok Adalat on the ground that no compromise or
settlement could be arrived at between the parties, the record of case shall be returned
by it to the court, by which the reference has been received under sub sec. (1) for
disposal in accordance with law.
Where no award is made by the Lok Adalat on the ground that no compromise or
settlement could be arrived at between the parties in a matter referred to it under sub
sec. (2) of sec. 18 that Lok Adalat shall advise the parties in a matter referred to in sub
sec. (2), that Lok Adalat shall advise the parties to seek remedy in a court.
Where the record of the case is returned under sub sec. (5) to the court, such court
shall proceed to deal with such cases from the stage which was reached before such
reference under sub sec. (1).
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conciliation is possible. Once the cases are identified, parties to the dispute are
motivated by the judges of the Lok Adalats to settle their cases through Lok Adalat.
Generally, senior judicial officers are invited to inaugurate a Lok Adalat.
The team of Lok Adalat generally consist of retired judges, senior local officers,
members of the Bar, spirited public-men, active women social worker, elders of the
locality and voluntary social organizations. The members of the Lok Adalat are called
conciliators. The number of conciliators is usually three.
If conciliation result in a settlement of a dispute, a compromise deed is drawn up and
after obtaining the signatures of the parties to the disputes and their advocates, it is
presented to the presiding officer of the competent court who is normally present at
the place where the Lok Adalat is organized.
The judge (Presiding officer) after examining the fairness and legality of compromise
and satisfying himself that the compromise has been arrived at by the free will and
mutual consent of the parties, passes a decree.
Award of Lok-Adalat (Sec. 21)
Every award of the Lok Adalat shall be deemed to be a decree of civil court or as the
case may be, an order of any other court and where a compromise or a settlement has
been arrived at, by a Lok Adalat in a case referred to it under sec. 20(1), the court fee
paid in such case shall be refunded in a manner provided under the court fee Act,
1870.
Even award made by a Lok Adalat shall be final and binding on all the parties to the
dispute and no appeal shall lie to any court against the award.
Powers of Lok Adalat (Sec. 22)
The Lok-Adalat shall have the same powers as are vested in a civil court under the
code of civil procedure 1908 while trying a suit in respect of the following matters
namely;
a) The summoning and enforcing the attendance of any witness and examining him on
oath.
b) The discovery and production of any document.
c) The reception of evidence on affidavits.
d) The requisitioning of any public record or document or copy of such record or
document from any court of office and
e) Such other matters as may be prescribed.
Without prejudice to the generality of the powers contained in sub sec. (1), every Lok
Adalat shall have the requisite powers to specify its own procedure for the
determination of any dispute coming before it.
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All proceedings before the Lok Adalat shall be deemed to be judicial proceedings
within the meaning of sec. 193, 219 and 228 of the I.P.C and every Lok-Adalat shall
deemed to be civil for the purpose of sec. 195 of C. P C.
6. Arbitration Agreement
In arbitration agreement is the raison d’être of an arbitration proceeding. It is only
through an arbitration agreement that parties can submit their issues to be adjudicated
by the arbitral tribunal. An arbitration agreement not only engenders an arbitral
tribunal but also gives shape to it. Therefore, it is crucial to understand the position of
the arbitration agreement under the statute.
In the 1940 Act, the Arbitration Agreement was defined under Section 2(a) as-
“A written agreement to submit present or future differences to arbitration, whether an
arbitrator is named therein or not.”
The vague definition was replaced in the 1996 Act by Section 7 which stated –
“7. Arbitration agreement. —
(1) In this Part, “arbitration agreement” means an agreement by the parties to submit
to arbitration all or certain disputes which have arisen or which may arise between
them in respect of a defined legal relationship, whether contractual or not.
(2) An arbitration agreement may be in the form of an arbitration clause in a contract
or in the form of a separate agreement.
(3) An arbitration agreement shall be in writing.
(4) An arbitration agreement is in writing if it is contained in—
(a) a document signed by the parties;
(b) an exchange of letters, telex, telegrams or other means of telecommunication
which provide a record of the agreement; or
(c) an exchange of statements of claim and defence in which the existence of the
agreement is alleged by one party and not denied by the other.
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(5) The reference in a contract to a document containing an arbitration clause
constitutes an arbitration agreement if the contract is in writing and the reference is
such as to make that arbitration clause part of the contract.”
In short, an arbitration agreement is formed when two parties enter into a contract and
agree in writing that any disputes arising between them out of that contract will have
to be resolved without going to the courts and with the assistance of a neutral person:
a third party appointed by both of the parties, known as the Arbitrator, who would act
as a judge and whose decision will be binding upon the parties.
Also, the 1996 Act ascribes an inviolable position to the arbitration agreement. Section
8 clearly states that after taking cognizance of a valid arbitration agreement between
the parties the court shall abstain from dwelling into the merits of the dispute and refer
the parties to arbitration.
An arbitration agreement once made, cannot be deterred when a dispute arises. In
Ravi Prakash Goel v. Chandra Prakash Goel, the Supreme Court held that where there
is an arbitration agreement present and applicable, the parties cannot take recourse to
the civil court without first undergoing arbitration. It is mandatory for the courts under
Section 8 of the 1997 Act, to refer the parties to arbitration when there is an applicable
arbitration agreement.
Forms of Arbitration Agreement
A fundamental requirement under Section 7 of the 1997 Act is that an arbitration
agreement shall be in writing. Besides that, Section 7 grants liberty to the parties to
form an arbitration agreement in multiple ways as enumerated below:
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In M/s Elite Engineering and Construction (HYD.) Private Ltd. v. M/s Techtrans
Construction India Private Ltd., the Supreme Court held that a general reference to the
incorporation of a separate arbitration clause will not be tenable in law. The reference
shall be clear and must indicate the intention of the parties to incorporate.
iv.By communication
According to Section 7(b) of the 1996 Act, an arbitration agreement can also be
inferred from the exchange of letters, telex, telegrams, or other means of
telecommunication, which provide a record of the agreement between the parties. In
short, an agreement can be construed from the correspondence of the parties where
there is a clear and unequivocal intention to refer the disputes to arbitration.
Recently, in Galaxy Infra and Engineering Pvt. Ltd v. Pravin Electricals Pvt. Ltd the
Delhi High Court held that the draft agreement exchanged by email between the
parties can be construed as a valid arbitration agreement.
In Pravinchandra Murarji Savla v. Meghji Murji Shah, it was held that it is the
substance of the agreement and not the form which is of importance.
Also, as per Section Section 7(c) of the 1996 Act and S.N. Prasad v. Monnet Finance
Ltd., where a statement of claims or allegations is made and is met with ‘non-denial’
by the other party, the presence of an arbitration agreement can be construed.
Therefore in the
Even though the 1996 Act has left the field open with a plethora of ways to form an
arbitration agreement, it is always recommended as a standard practice to choose to
have an arbitration clause in a contract itself.
Drafting an Effective Arbitration Agreement
Supreme Court, in the cases Jagdish Chander v. Ramesh Chander and K. K. Modi v.
K. N. Modi directly tackled the question of what constitutes a valid arbitration
agreement. The Hon’ble Court arrived at a list of principles that should be
incorporated in an arbitration agreement. The principles are as follows:
a.The arbitration agreement must be in writing.
b.The parties shall agree to refer any dispute (present or future) arising out of a
contract to a private tribunal.
c.The private tribunal should be empowered to adjudicate upon the disputes in an
impartial manner, giving due opportunity to the parties to put forth their case before it.
d.The parties must agree to be bound by the decision of the arbitral tribunal.
e.The intention of the parties to refer the dispute to a private tribunal must be
unequivocally reflected.
f.There must be ‘consensus ad idem’ between the parties i.e. they should agree to the
same thing in the same sense.
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g.The words shall contemplate an obligation and determination on the part of the
parties to invoke arbitration and not merely a possibility. For example, use of the
words such as “parties can if they so desire, refer their dispute to arbitration” or “ in
the event of any dispute, the parties may also agree to refer the same to arbitration”
shall not be construed as submission to arbitration.
h.The agreement clauses shall not in any way specifically exclude any of the
aforementioned essentials. For example, a clause permitting the tribunal to decide a
claim without hearing the other side.
i.Although it is always preferable to draft clear and unambiguous clauses, an
arbitration agreement not mentioning the words “arbitration”, “arbitration tribunal”
and/or “the arbitrator” may still be considered a valid arbitration agreement if the
basic attributes of a valid arbitration agreement (as aforementioned) are present
therein.
j.It is to be noted that the aforementioned list is not comprehensive. To draft effective
arbitration agreements, contemplating some additional mechanisms can help the
parties overcome complications that may arise in the arbitral process. The following
are such mechanism:
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7. International Commercial Arbitration
Arbitration or Alternative Dispute Resolution(ADR) means a mechanism in law which
encourages parties to settle their differences privately either by mutual consensus or
by mediation of a third person. It can be considered as a substitute for the traditional
litigation system which is prevalent in this society for more than few centuries now.
Arbitration is often used for the resolution of commercial disputes, particularly in the
context of international commercial transactions. In the process of arbitration, there is
a hearing conducted to determine the cause of conflict between the parties by the
person who is appointed as an arbitrator by the parties or by the statutory body. The
main purpose of arbitration is adjudication and there is no place to compromise. After
determining the cause of conflict and hearing both sides of the parties, the arbitrator
enforces their point of view that is neutral and fair. In India, there are four types of
ADRs. They are: Arbitration, Negotiation, Conciliation, and the Lok Adalat and they
are recognized legally through few enactments such as The Arbitration and
Conciliation Act 1996, The Legal Services Authority Act, 1987, and Section 89 of the
Civil Procedure Code of 1908.
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When there are circumstances that raise reasonable suspicions about his or her
independence or impartiality; or
The arbitrator does not possess the qualities the parties required.
d.Interim relief: Section 9 of the Act provides for interim measures of protection not
just before the commencement of arbitral proceedings and during the arbitral
proceedings but also after the arbitral award has been delivered. Section 17provides
for interim measures ordered by the arbitral tribunal if it is found at the time of
proceedings that the disputed matter is dangerous then it can ask the party to provide
security.
e.Challenge to jurisdiction: According to Section 16 of the Act, an arbitral tribunal
has the authority to rule on its jurisdiction if there exists a valid arbitration agreement.
If any party has an objection regarding the invention of the tribunal then that party can
file a plea before the submission of defence.
The Supreme Court in the case of S.B.P. and Co. v. Patel Engineering Ltd. and Anr
held that if without judicial intervention the arbitral tribunal was constituted by the
parties the arbitral tribunal can determine all jurisdictional issues by exercising its
powers of competence under Section 16 of the Act.
f.Settlement during arbitration: The parties are allowed to settle the dispute
mutually even if the arbitration proceedings are going on. If the parties arrive at the
settlement amicably, the arbitration proceeding will be terminated. Also if both the
parties give their consent to record the settlement then this would be known as a
consent award that would work as an arbitral award.
g.Arbitral awards: The decision rendered by the arbitrators in an arbitration
proceeding is known as an arbitral award. The decisions are taken by taking the view
of both the parties and by the majority. An arbitral award should be in a written form
signed by all the members of tribunals. In the arbitral award, the date and place where
it is made should be mentioned. Each party is entitled to acquire a copy of the arbitral
award.
The challenge to an arbitral award: Section 34 of the Arbitration and Conciliation Act
provides an application for setting aside an arbitral award. The party can challenge the
arbitral award within three months from the date of receipt of an arbitral award and
additional 30 days can be given if any good reason is given. A party can challenge the
arbitral award on the following grounds by furnishing the proof:
i. A party was under some incapacity.
ii. Under the law, the arbitration agreement is not valid.
iii. The party was not provided sufficient time to appoint arbitrators and
was not given proper notice and was unable to present the case
properly.
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iv. The arbitral award does not contain the solution of the dispute but it
deals with matters beyond the dispute.
v. The composition of arbitral trials and the arbitral proceedings were
not according to the agreement of the parties.
vi. If the court finds out that the arbitral award conflicts with public
policy or the subject matter of the disputes are not capable enough to
settle by arbitration.
h. Foreign Arbitral award: In the Arbitration and Conciliation Act, foreign awards
are covered under part of the Act that contains New York Convention Awardsand
Geneva Convention Awards. The New York Convention defines foreign arbitral
awards as differences between the parties arising out of the legal relationships. The
definition of the foreign award is given in Section 44 of the Arbitration and
Conciliation Act. The Geneva Convention defines the foreign awards in Section 53 as
differences between the parties arising out of commercial matters.
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8. Composition and jurisdiction of Arbitral Tribunals
As per the strategy paper given by Niti Aayog in 2018, there were 29 million cases
pending in Indian courts, and at that time it was said that it would take more than 324
years to clear that backlog with the number of judges that were appointed. Now the
pendency has risen to 44 million cases and there are only 21.03 million judges over 1
million people in the country. These statistics are somewhat worrisome. Considering
such a situation, people nowadays are considering alternate ways of dispute resolution
and ‘arbitration’ is one such way.
Arbitration is an alternative method provided for dispute resolution in civil matters. It
is a way in which a dispute is decided by private individuals appointed and not the
judicial officers appointed to the courts and tribunals of the country directly. These
private individuals are called arbitrators, and they are quasi-judicial officers. However,
all the matters cannot be decided by way of arbitration. Such matters involve matters
related to crimes, matrimony, insolvency and winding up, guardianship, tenancy,
testamentary matters, trusts, etc. This bifurcation is made by keeping in mind the kind
of right affected, i.e., ‘right in rem’ or ‘right in personam’ and also the jurisdiction of
special courts and the analysis of public policy.
Whenever a dispute arises between two parties and they decide to resolve the dispute
through arbitration, an arbitral tribunal is to be set up. An “arbitral tribunal” means a
sole arbitrator or a panel of arbitrators. Their task is to adjudicate and resolve the
dispute and to provide an arbitral award.
In this article, all the details and information about the arbitration tribunals are
discussed.
Composition of Arbitral Tribunal
Chapter-III of the Arbitration and Conciliation Act, 1996 talks about the composition
of the arbitral tribunal. The provisions which are discussed in detail in Chapter-III are
mentioned below-
a.The number of arbitrators
b.Their appointment
c.Power of the Central Government to amend the schedule
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d.Grounds on which the appointment of the arbitrator can be challenged
e.Procedure to challenge the appointment
f.Failure or impossibility on the part of the arbitrator to act
g.Termination of the mandate and substitution of the arbitrator
h.The number of arbitrators should be odd and not even. It helps in determining the
clear majority of the tribunal and avoids any sort of discrepancy in that regard.
Composition of the Arbitration Council of India
It consists of a Chairperson who is either:
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9. Conduct of Arbitral Proceeding and its Termination and Making of arbitral
award
In recent times, the arbitration process has become a powerful tool to bring business
disputes to an end. The Arbitration and Conciliation Act, 1996 (hereinafter referred to
as “the Act”) was enacted to consolidate, codify and amend the laws pertaining to
domestic as well as international commercial arbitration and enforcement of foreign
awards. The Act also codified laws related to conciliation and connected matters. The
Act ensures party autonomy and confidentiality in the matters of arbitration.
Important prerequisites
a.Arbitration Agreement
The requirements of an arbitration agreement are provided under Section 7 of the Act.
The arbitration agreement must be in writing and duly signed by the parties. The
arbitration agreement can be in the form of an arbitration clause in a contract or in the
form of a separate agreement.
In P.A.G Raju v. P.V.G. Raju (AIR 2000 SC 1886), the Hon’ble Supreme Court held
that Arbitration agreement is not a prerequisite for arbitration. If one party applies to
the court to get a matter referred to arbitration and if the other party does not object
then there is no bar on the court in referring the parties to the arbitration. Parties are
allowed to go for arbitration. The important requirement is the consensus of parties.
In the case of Bihar State Mineral Dev. Corpn. v Encon Builders (I) Pvt. Ltd. (AIR
2003 SC 3688), the court laid down the essential elements of an arbitration agreement
which are as follows:
i. Existence of present or possibility of future differences.
ii. Intention to resolve differences through arbitration.
iii. Written agreement to be bound by the decision of arbitration.
iv. Consensus ad idem.
v. Concluded consent to refer the dispute to arbitration.
vi. Notice required prior to referral of disputes
vii. Notice by one party to another party under Section 21 of the Act is
mandatory before referring the disputes to arbitration.
In 2017, the Delhi High Court in the case of Alupro Building Systems Pvt Ltd v.
Ozone Overseas Pvt. Ltd. considered the question whether notice under Section 21 is
mandatory where the petitioner received a notice from a sole arbitrator. The
26
respondent appointed the sole arbitrator and issued notice to the petitioner through the
sole arbitrator that the dispute between them will be arbitrated over by him. The
unilateral appointment of a sole arbitrator by one party was the grievance of the
petitioner. The court after hearing observed that the bare reading of Section 21
provides the date of commencement of arbitration proceedings based on the receipt of
notice by the other party. The court further ascertained the object behind this provision
is that the other party to the arbitration agreement against whom a claim through
notice is made should know what the claims are. The notice under this provision
serves an important purpose of reaching a consensus between parties on the
appointment of an arbitrator. And lastly, the court explained the relation between
Section 11(6) and Section 21 of the Act where one party fails to adhere to the
procedure of the appointment of an arbitrator. Therefore, Section 21 is mandatory as
the arbitration proceedings commenced without prior notice are unsustainable and bad
in law.
B.Appointment of arbitrators
One of the advantages of arbitration is that it allows parties to an arbitration agreement
to submit a dispute to judges of their own choice. Under Section 10 of the Act, the
parties are free to determine any odd number of arbitrators. In cases where the parties
fail to determine the number of arbitrators, the arbitral tribunal shall consist of a sole
arbitrator.
Under Section 11 of the Act, the parties are free to agree on a procedure for the
appointment of arbitrator or arbitrators. But if the appointment of the arbitrator is not
consensual, the arbitrator has no power to make a binding order or award and if he
makes any award it will be a nullity.
The appointment of an arbitrator by a party is complete only on its communication to
the other party.
C.Members involved in the proceeding
Arbitration is a procedure in which a dispute is submitted, by agreement of the parties,
to an arbitrator or to a tribunal of several arbitrators who give a decision on the dispute
that is binding on the parties.
Section 7 of the Act defines an arbitration agreement. It is an agreement by the parties
to submit to arbitration all or certain disputes which have arisen or which may arise
between them in respect of a defined legal relationship.
The parties to the arbitration agreement under Section 10 of the Act are free to
determine the number of arbitrators but such number shall not be an even number.
The Arbitration and Conciliation Act does not give arbitrator or tribunal any power to
enjoin a third party to pending arbitration proceedings or consult third parties without
disclosing it to the parties. In the Husein Ebrahim v. Keshardeo Kanaria & Co. (AIR
1954 Cal 111), the arbitrators approached a third person, who was not the party to the
27
arbitration agreement, by writing a letter to him. They asked him for certain
information which was related to arbitration proceedings. The arbitrators also did not
discuss or disclose this information to the parties. The court held that the arbitrators
were guilty of misconduct.
So, the members involved in any arbitration proceedings are the parties to the
arbitration agreement and a sole arbitrator, or a tribunal of several arbitrators.
D.Arbitration Proceedings
Section 21 of the Act provides the rules which govern the commencement of arbitral
proceedings. It gives freedom to the parties to agree and determine when the
arbitration proceeding can officially commence. But in the absence of such an
agreement or where the parties fail to arrive at an agreement, the arbitral proceedings
can commence when one party issues a notice to the other party, in writing, showing
its intention to refer the dispute to arbitration.
X.Court Assistance
Section 27 of the Act provides the arbitral tribunal with the power to apply for the
court assistance in taking evidence. Persons can also be held guilty and tried before
the court, if they refuse to give evidence or do not cooperate.
XI.Termination
The arbitral proceedings are terminated either by the final arbitral award or by an
order of the arbitral tribunal terminating the arbitral proceedings.
The arbitral tribunal terminates the arbitral proceedings in any of these cases where:
the claimant withdraws the claim and respondent does not object to it,
both parties are in consensus and agree to terminate the arbitral proceedings, or
30
the continuation of the arbitral proceedings has become impossible or irrelevant
considering the present facts of the case.
Also, the termination of the arbitral proceedings terminates the mandate of the arbitral
tribunal and the arbitral tribunal becomes functus officio. The term “functus officio”
means no longer holding office or having official authority once a decision is
rendered.
10. Finality and enforcement of Arbitral Award- Enforcement of Foreign awards (New
York Convention Awards & Geneva Convention Awards)
Section 35 of Arbitration and Conciliation Act, 1996- Finality and enforcement of
Arbitral
Legal finality is conferred on the Arbitral Award by Section 35. The Arbitral Award
shall be final and binding on the parties and the persons claiming under them
respectively.
After a signed copy of the Award is handed over to the parties, the award does not
become immediately final and binding on the parties. There is an opportunity for the
parties to apply for correction, interpretation of the award or an additional award or
for setting aside the Award.
A time period or a time limit is specified for making the above-mentioned application.
If the applications are not made within the specified time limit, then on the expiry of
that period, the Award will automatically become final and binding. But if the
applications are made within the specified time limit, then the Award shall become
final and binding as soon as the applications are disposed of by the Arbitrator or the
Court.
The final Award is complete in all respects. There is nothing more to be done by the
Arbitrator to make the Award legally binding on the parties. The effect of an Award
that has become final and legally binding is that a second reference of the subject
matter of the Award is not possible because the matter has become "res judicator." A
suit cannot be filed by the parties on the same matter again in Court.
Section 36 of Arbitration and Conciliation Act, 1996- Enforceability or Execution of
the Arbitral Award
The arbitral award is enforceable/executable as if it were a decree of the Court. The
Award can be enforced only after the expiry of the time limit specified for making an
application for setting aside the Award u/s. 34. If the period expires and no application
is made u/s. 34, then the arbitral award can be immediately enforced. But if an
application is made u/s 34 within the time prescribed, the award can be enforced only
if the application u/s 34 is refused by the Court. It also lays down that the arbitral
award must be enforced under the CPC in the same manner as a decree of the court is
enforced. (Order 21 of CPC 1908 and S.47 of the CPC).
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S. 47 of CPC- when a court is executing a decree, all the questions relating to it must
be decided by that court itself.
11. Conciliation -
(a) Commencement of proceeding: Either party to the dispute can commence the
conciliation process. When one party invites the other party for resolution of their
dispute through conciliation, the conciliation proceedings are said to have been
initiated. When the other party accepts the invitation, the conciliation proceedings
commence. If the other party
rejects the invitation, there are no conciliation proceedings for the resolution of that
dispute. Generally, only one conciliator is appointed to resolve the dispute between
the parties. The parties can appoint the sole conciliator by mutual consent. If the
parties fail to arrive at a mutual agreement, they can enlist the support of any
international or national institution for the appointment of a conciliator. There is no
bar to the appointment of two or more conciliators. In conciliation proceedings with
three conciliators, each party appoints one conciliator. The third conciliator is
appointed by the parties by mutual consent. Unlike arbitration where the third
arbitrator is called the Presiding Arbitrator, the third conciliator is not termed as
Presiding conciliator. He is just the third conciliator. The conciliator is supposed to be
impartial and conduct the conciliation proceedings in an impartial
manner. He is guided by the principles of objectivity, fairness and justice, and by the
usage of the trade concerned and the circumstances surrounding the dispute, including
any previous business practices between the parties. The conciliator is not bound by
the rules of procedure and evidence. The conciliator does not give any award or order.
He tries to bring an acceptable agreement as to the dispute between the parties by
mutual consent. The agreement so arrived at is signed by the parties and authenticated
by the conciliator. In some legal
systems, the agreement so arrived at between the parties resolving their dispute has
been given the status of an arbitral award. If no consensus could be arrived at between
the parties and the conciliation proceedings fail, the parties can resort to arbitration. A
conciliator is not expected to act, after the conciliation proceedings are over, as an
arbitrator unless the parties expressly agree that the conciliator can act as arbitrator.
Similarly, the conciliation proceedings are confidential in nature.
Rules of Conciliation of most of the international institutions provide that the parties
shall not rely on or introduce as evidence in arbitral or judicial proceedings,
(a) the views expressed or suggestions made for a possible settlement during the
conciliation proceedings;
(b) admissions made by any party during the course of the conciliation proceedings;
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(c) proposals made by the conciliator for the consideration of the parties;
(d) the fact that any party had indicated its willingness to accept a proposal for
settlement made by the conciliator; and that the conciliator shall not be produced or
presented as a witness in any such arbitral or judicial proceedings. Conciliation has
received statutory recognition as it has been proved useful that before referring the
dispute to the civil court or industrial court or family court etc, efforts to concile
between the parties should be
made. It is similar to the American concept of court-annexed mediation. However
without structured procedure & statutory sanction, it was not possible for conciliation
to achieve popularity in the countries like USA & also in other economically
advanced countries.
For this confidentiality & discipline parties may enter into contractual agreement in a
case
here there is no provision under the Act. Parties are free to withdraw at any stage of
conciliation proceedings & conciliator may also terminate the proceedings, if he finds
that there is no scope for settlement. But in some cases some points of dispute are
34
resolved, though not the whole dispute. Thus, even where an attempt to conciliate
fails it helps in narrowing the issue in dispute.
(e) Termination: As and when the parties reach an amicable settlement on the
disputes which had been referred to the conciliator, and a duly authenticated copy (by
the conciliator) of the settlement agreement is handed over to the parties, the
conciliation proceedings shall stand terminated on that date. There is no provision in
the Act for review of the settlement agreement, nor there do any provision under
which any of the parties to the settlement
agreement can retrace its steps and wriggle out of the written commitments in the
form of a settlement agreement. A conciliation proceeding comes to an end & stands
terminated if any of the following condition is fulfilled;
There is no bar on the number of times the efforts for conciliation can be made.
Termination of conciliation proceedings can by no means be taken to be the end of the
conciliation efforts for all times to come.
For the preservation, custody or the sale of goods concerning the arbitration
agreement;
For appointing a guardian for a minor or a person who is of unsound mind;
For securing the amount involved in the dispute;
For the conservation, detention or protection of the property or thing that
forms the subject matter of the arbitration agreement;
Such an interim measure as the court may deem fit and necessary;
For appointing a recipient or interim injunction.
III.Relief before arbitral proceedings: The Amendment Act, 2015, amended the
Arbitration Act by inserting two subsections to Section 9. Sub-section-2, the first
insertion, provides that where a court grants an interim relief before the initiation of
arbitral proceedings, the proceedings will begin within ninety days from the date of
the grant of such relief.
In the case of Bhubaneswar Expressways Pvt. Ltd. v. NHAI (2019), the constitution of
the tribunal became insignificant because it lost its functionality when one of the
36
parties backed out from the agreement to arbitrate. The High Court of Delhi had held
herein that the interim relief granted by the tribunal was thus ineffective, and it
directly implies that the court can most definitely entertain the petition filed by the
other party under Section 9.
V. Appeals from orders passed by courts: A party to the dispute can appeal from an
order passed by a court granting or refusing to grant interim relief under Section 9 as
per the provision in Section 37(1)(b).
For the preservation, custody or the sale of goods concerning the arbitration
agreement;
For securing the amount involved in the dispute;
For the preservation, detention or protection of the property or thing that
forms the subject matter of the arbitration agreement;
Such an interim measure as the tribunal may deem fit and necessary;
For appointing a recipient or interim injunction;
For appointing a guardian for a minor or a person who is of unsound mind.
Sub-section-2 of Section-17 affirms that any order passed by the tribunal that delivers
any of these interim measures will be equivalent to an order passed by a Court. It will
be enforceable under the Code of Civil Procedure, 1908, in the same manner as an
order passed by the court.
VIII.No interim relief against third party: An arbitral tribunal can pass any of the
above-stated interim measures against either party to the dispute. However, as was
held by the Supreme Court in the case MD Army Welfare Housing Organization v.
Sumangal Services (P) Ltd. (2003), it cannot furnish them against a third party. The
37
apex court had said that the arbitral tribunals are not the courts of law. Their
jurisdiction limits to just the agreement over which the dispute has occurred.
Therefore, they cannot perform judicial functions and deliver judicial orders. They can
act only against the involved parties. Any third person does not come under their
ambit. In cases where a party seeks interim relief against a third party, they have to
advance to the court for the same.
IX.Appeals from orders passed by tribunals: As per Section 37(2), a party to the
dispute can appeal from an order passed by an arbitral tribunal:
38
Mediation – Meaning, Advantage, Techniques, Common Errors of
Mediation Advocacy.
Meaning: Alternate dispute resolution (ADR) is seen as the mechanism which can
help to reduce the burden on the conventional adversarial mode of dispute solving.
Any method in which dispute is resolved outside the court is considered as Alternate
Dispute Resolution system. ADR is an umbrella term which includes all legally
permitted processes of dispute resolution other than litigation[1].Alternate dispute
resolution is not a new concept for India, It has witnessed it in the form of panchayats
and family gatherings since time immemorial. Legal history indicates that down the
ages man has been experimenting with procedure for making it easy, cheap, unfailing
and convenient to obtain justice[2] .
There are four forms of ADR techniques namely, Arbitration, Negotiation Mediation
and Conciliation.
Mediation in its plain and simple meaning is nothing but facilitated negotiation[3].
However, comprehensively, mediation may be defined as a voluntary process of
dispute resolution where a neutral[4] third party (the mediator) with the use of
effective and specialized communication and negotiation techniques[5]aids the parties
in arriving at an amicable settlement.[6] It has been derived from the Latin word
�mediare� which means �to be in the middle.�[7] Therefore it can be said that it
is a process which is aimed at searching the middle path between the disputes among
the parties so that a mutually agreeable settlement may be worked out. It is a non-
adversarial dispute settlement approach and a well-known ADR mechanism.
At the point when we talk about its international presence the first thing that comes to
our mind is The United Nations Convention on International Settlement Agreements
resulting from Mediation, also known as the Singapore Convention on Mediation (the
Convention) certified in 2018, applies to international settlement agreements resulting
from mediation (settlement agreement). The Convention establishes a legitimate
system for the right to invoke settlement agreements as well as for their enforcement.
It acts as an instrument which promotes mediation and thus facilitates international
trade and commerce. The Convention is open for signature by States and regional
economic integration organizations (referred to as Parties).[8]
39
In India, mediation is legitimised by Section 89 of the Civil Procedure Code, 1908[9]
which states that the court can refer the parties to mediation or arbitration if there exist
elements of a settlement which should be acceptable to the parties involved. Industrial
Disputes Act, 1947 is the first legislation which gives legal recognition to the
mediation. Section 4[10] of this Act talks about appointment of an independent and
impartial mediator for the process of mediation.
Advantages of Mediation:
Perks of the mediation process can be discussed under the following points:
1. Financially effective and quicker resolution:
Mediation offers an ADR mechanism for cost effective and expeditious resolution of
disputes.[12] The costs incurred in the mediation process is nominal in comparison to
arbitration or judicial procedures. The parties are saved from the cost fee and the legal
counsel�s fee. There are no legal traps or procedural loopholes and obligations. The
dispute resolution process is faster due to minimal legal formalities and flexibility of
procedures. When the mediation process reaches the settlement the dispute stands as
resolved finally. Thus the hassles and expenditures of appeals are avoided.
2.Secrecy and confidentiality:
This is the major advantage of this form of alternate dispute resolution process that
there is utmost confidentiality between the mediator and the parties involved and the
outside parties do not have access to the mediation proceedings. There is
confidentiality even between one party and mediator i.e. if one party provides any
information to the mediator; it is to be kept confidential even from the other party
subject to a specific condition. Mediation is confidential whether or not it results in
the settlement and resolution of the dispute.[13]Even when it is unsuccessful one
cannot disclose what has been transpired in the proceedings. This is despite the fact
that confidentiality in mediation has no statutory backing[14] because inherently the
process is considered confidential. The courts have also emphasized upon the aspect
of confidentiality in mediation proceedings.[15]
3.A Win-Win situation:
Mediation is essentially non adversarial in nature and fundamentally parties are not
opponents in mediation, but are collaborators striving towards a mutually acceptable
resolution which results in a win-win situation[16] as the final outcome is arrived at
with the consent of both the parties and leaves both the parties satisfied.[17] One of
the major advantages of mediation is that here neither of the parties lose and the
decision comes from the mutual agreement of both and interests of both the parties are
conserved .Even where mediation does not result in a final settlement, and the dispute
remains in trial, the joint communication established and the clarification of the nature
40
of the dispute, if not an actual narrowing of the conflict, makes the trial proceed much
more efficiently.[18]
4.Conservation of Relationships:
In mediation the parties alone are responsible for their own decisions which come
forth through the absence of formality of court procedures and through open
discussion of issues and free interchange of ideas resulting into a greater likelihood of
a lasting resolution.[19] This ADR mechanism encourages the parties to participate in
the process without any legal barriers or involvement of law experts, communicate
their problems and work together with the side opposite to reach a mutually agreeable
settlement .It provides an atmosphere where disputes are resolved in cool, composed
and amiable atmosphere. Hence, focuses on long-term interests and bonding, fosters
amity and friendship.[20] As neither of the sides lose and as there is no disagreement
between them, relations between the parties are preserved.
5.Innovative and unconventional solutions:
It permits the sides to formulate customized and tailor- made solutions for their
disputes with regards to the needs and interests of the parties which they could not
have if they would have opted for litigation or arbitration. In this process parties
themselves resolves the disputes among themselves and are free to formulate a
suitable solution by themselves as per their requirement. The hallmark of mediation is
therefore its capacity to help the parties expand traditional settlement discussions and
broaden resolution options, often by going beyond the legal issues in controversy.[21]
Hence, the mediation process provides novel broad-based solutions rather than
straightforward legal adjudication.[22]
Techniques:
At the point when we talk about its international presence the first thing that comes to
our mind is The United Nations Convention on International Settlement Agreements
resulting from Mediation, also known as the Singapore Convention on Mediation (the
Convention) certified in 2018, applies to international settlement agreements resulting
from mediation (settlement agreement). The Convention establishes a legitimate
system for the right to invoke settlement agreements as well as for their enforcement.
It acts as an instrument which promotes mediation and thus facilitates international
trade and commerce. The Convention is open for signature by States and regional
economic integration organizations (referred to as Parties).[8]
In India, mediation is legitimised by Section 89 of the Civil Procedure Code, 1908[9]
which states that the court can refer the parties to mediation or arbitration if there exist
elements of a settlement which should be acceptable to the parties involved. Industrial
Disputes Act, 1947 is the first legislation which gives legal recognition to the
41
mediation. Section 4[10] of this Act talks about appointment of an independent and
impartial mediator for the process of mediation.
In the case of Salem Advocate Bar Association, Tamil Nadu v. Union of India[11]
Supreme Court held in reference to the matter of mediation that conciliation and
arbitration are mandatory for Court matters. This judgement has granted legal and
social recognition to mediation as a method of dispute resolution.
The purpose of ADR is primarily to reduce the pile of cases in Courts. It has become a
challenge for the courts to deal with such arrears of cases. There are a lot of issues
with our civil justice system these are delays, costs, rigidity of procedure and
reduction of participatory role of parties. As we are already aware of the role of
mediation as time saving and cost cutting measure let us understand the role of
mediation in reducing procedural rigidity and facilitating participatory roles of parties
in dispute resolution.
The conventional justice system lays great emphasis on inflexible rules and procedure
so that all the litigants get justice in accordance to the same procedural formulation.
But with changing times the procedural law has become very complicated that it
sometimes leads to miscarriage of justice due to technical lacuna in the case.
On the other hand mediation law does not insist upon principles of evidence act and
rigid procedures and of code in the settlement of disputes. A mediator acts in a flexible
manner and can listen to the parties separately when he considers it vital. In
adversarial system of dispute resolution the parties to the dispute have a very limited
role to play in the judicial procedures. In this system the advocates have a
considerable role to play and the parties present their submissions through their legal
counsels.
However in Mediation the parties themselves are involved in the dispute solving
process, they convey their problems to the mediator which then deals with them
efficiently due to his expertise and experience. Mediation table provides the parties to
express their emotions, interests, perceptions and opinions which are often not
allowed in the conventional court system. Hence, mediation has potential to solve an
array of problems such as delay and expense, rigidity in procedure and provides
participatory role to the parties and hence has potential to provide solutions which are
beyond the conventional legal remedies.
44