1.

Existing justice Delivery System in India- Effectiveness and Menaces

Justice Delivery in an effective and efficient manner is the basis of rule of law and
governance in a society. To combat any crime, especially a crime such as trafficking,
which is multifaceted and multi-dimensional, itisthus, extremely important to under
stand the justice delivery system against it. India has the largest number of cases in the
world and to deal with such a volume of cases, there are around 12,000 courts in India
- one Supreme Court, 21 High Courts, 3,150 District Level Courts, 4,816
Munsif/Magistrate Courts and 1,964 Magistrate II and equivalent Courts.
The best understanding of the Judicial system can come by undertaking a few
activities. These activities are not limited to this unit and may be undertaken for a
better and deeper understanding of the entire Block.
1) A physical visit to various Courts to get a practical insight in their functioning.
2) To visit a shelter home for trafficking victims and understand from them the
various issuesfaced bythem during/afterrescue inprosecutions ofthe offenders.
3) To visit at least one advocate working at each level of judiciary. For e.g., visit a
designated senior advocate practicingat the Supreme Court and/ or High Court,
and another advocate working in district courts or other lower courts.
4) To visit and meet with the Member Sec. of the State Legal ServicesAuthority
to gain an understanding of the process and systems of legal aid in trafficking
cases.
5) To take up and debate upon real/ actual cases of trafficking and try to reach a
conclusion legallyin the best interest of the victim.
6) To visit and meet with some individuals or civil societyorganizations working
on prosecutions in trafficking case
There are a variety of sources of criminal law in India. The Indian Penal Code of
1860, along with other state and unique legislation such as the Protection of Civil
Rights Act, 1955, the Dowry Prohibition Act, 1961 and the Scheduled Castes and
Scheduled Tribes Act, 1989, defines what constitutes a criminal offense under Indian
rule. The Indian Evidence Act sets out the rules under which evidence is admissible in
the Indian Courts.

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.

Branches of Criminal Justice System:-

· 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.

KEY PLAYERS IN CRIMINAL JUSTICE SYSTEM:-

· POLICE
· PUBLIC PROSECUTOR
· DEFENCE LAWYER
· JUDGE

Steps in the criminal justice process:-

§ ❖ Investigation.
§ ❖ Arrest.
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§ ❖ Prosecution.
§ ❖ Filing of information by a prosecutor.
§ ❖ Arraignment by a judge.
§ ❖ Pretrial detention or bail.
§ ❖ Plea bargaining.
§ ❖ Trial/adjudication of guilt.
§ ❖ Sentencing by a judge.
§ ❖ Appeals.
§ ❖ Punishment or rehabilitation.

Menaces in judicial delivery systems

The Indian Criminal Justice System is infested with numerous problems; several of
them are listed here. The Indian Criminal Justice System is reportedly suffering from
a variety of illnesses, some of which may be identified as:
v Huge pendency / Arrears of Court Cases;
v Lengthy Procedure;
v Time Consuming and Expensive Legal Process;
v Abnormal Delays in Litigation;
v Non-Accountable Bar;
v Lack of Coordination between Police and Prosecution;
v Faulty and Slipshod Investigation;
v Unnecessary Detentions Causing Overcrowding of Jails;
v Enormous Workload on Courts;
v Alien Model;
v Lack of a Speedy Dispute Resolution Mechanism;
v Lack of Judges with respect to population ratio;
v Delayed Trial;
v Low Rate of conviction;
v Prolonged Incarceration of under trial prisoners;
v Judge Neutrality Principle they never takes any initiatives to discover the truth.
v Judicial Corruption; and
v Absence of checks and balances.

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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.

Procedure to File PIL in India

Any Indian citizen or organisation can move the court for a public interest/cause by
filing a petition:

1. In the SC under Article 32

2. In the High Courts under Article 226
The court can treat a letter as a writ petition and take action on it. The court has to be
satisfied that the writ petition complies with the following: the letter is addressed by
the aggrieved person or a public-spirited individual or a social action group for the
enforcement of legal or constitutional rights to any person who, upon poverty or
disability, are not able to approach the court for redress. The court can also take action
on the basis of newspaper reports if it is satisfied with the case.

Significance of Public Interest Litigation (PIL) in India

The original purpose of PILs has been to make justice accessible to the poor and the
marginalized.

 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.

Criticism of Public Interest Litigation (PIL) in India

Off late, PILs have become a tool for publicity. People file frivolous petitions which
result in the wastage of time of the courts. People have used them with a political
agenda as well. They unnecessarily burden the judiciary. Even if the petition is
eventually dismissed, the courts spend time and effort on them before dismissing
them.

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).

Procedure of Lok-Adalats (Sec. 20)

The Lok Adalats are generally organized by state legal aid and advice boards or the
district legal aid committees etc.
Lok Adalats shall have jurisdiction to determine and arrive at a compromise or
settlement between the parties to a dispute in respect of;
a) Any case pending before the court; or
b) Any matter which is falling within the jurisdiction of and is not brought before any
court for which the Lok Adalat is organized.
The Lok Adalat shall not have jurisdiction in respect of any matter or case relating to
an offence not compoundable under any law.
The date and place of holding a Lok Adalat are fixed about a month in advance by the
Legal Aid Board. The date so fixed is generally a Saturday or Sunday or some other
holiday.
1nformation about holding a Lok Adalat is given wide publicity through press,
posters, radio, TV, etc.
Before a Lok-Adalat is held, its organizers request the presiding officers of the various
local courts to examine cases pending in their courts where in their opinion,

13
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:

i.A standalone separate Arbitration Agreement

A separate arbitration agreement can be formed in addition and reference to the
operative agreement between the parties.
ii.An Arbitration Clause
An arbitration clause can be formed in the operative agreement as to the section of the
agreement that deals with the rights and options of the parties in the event of a legal
dispute arising out of the contract. An arbitration clause is construed as an arbitration
agreement.
iii.Incorporation by reference
An arbitration clause contained in a separate contract can also be incorporated in a
contract being drafted. As per Section 7(5), any reference to a document containing an
arbitration clause shall also be construed as an arbitration agreement provided that the
referred contract is in writing and the reference is made with the intention to make that
arbitration clause the part of the contract.

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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.
17
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:

k.Number of arbitrators: Deciding the composition of the arbitrator tribunal is crucial.

At times, the subject matter of the contract may be so intricate and convoluted that it
would require the expertise of multiple arbitrators. Furthermore, in some cases, both
the parties may want to exercise the right of appointing a nominee arbitrator.
Since appointing multiple arbitrators adds to the cost burden of the parties and causes
difficulties in scheduling dates, the general practice is to appoint either a sole
arbitrator or three arbitrators.
Procedure for appointment
Under the 1996 Act, Section 11, empowers the parties to formulate and agree upon an
appointment procedure by themselves. If the parties fail to agree upon a procedure, in
an arbitration with a sole arbitrator, the court shall make the appointment and in an
arbitration with three arbitrators, each party must appoint one arbitrator and then the
two appointed arbitrators choose a presiding arbitrator.

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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.

Origin and Evolution of the concept of Arbitration

The course of arbitration flourished in India since the end of nineteenth century.
Arbitration in India was statutorily recognized as form of dispute resolution for the
first time when Indian Arbitration Act, 1899 was enacted however, it was confined to
the three presidency towns only i.e. Madras, Bombay and Calcutta. It was further
codified in Section 89 and Schedule II of the Code of Civil Procedure, 1908, where
provisions of arbitration got extended to different regions of British India to which the
Act of 1899 was not extended. The Act of 1899 and the provisions of the Code of
Civil Procedure, 1908 were found to be inexpedient and more technical and thus,
Arbitration Act, 1940 came into existence and repealed the Act of 1899 along with the
relevant provisions of the Code of Civil Procedure, 1908. The Act of 1940 was a
reflection of the English Arbitration Act, 1934 and was a comprehensive legislation on
the subject but it had no provisions to deal with enforcement of foreign awards and
hence, dealt only with domestic arbitrations. Though, the 1940 Act attracted severe
criticism and adverse remarks from the Courts however, no amendments were brought
19
in to improve the working of the 1940 Act. After the economic liberalization in the
year 1991, steps were taken to attract foreign investment which required a comfortable
business environment and ease of doing business. For the said reason, Arbitration and
Conciliation Act, 1996 came into force and repealed the Act of 1940. Interestingly, the
Act of 1996 was based on UNCITRAL Model Law on International Commercial
Arbitration, 1985 and covered both domestic and international arbitration.
International Commercial Arbitration System
International commercial arbitration is an alternative method of resolving disputes
between private parties arising out of commercial transactions conducted across
national boundaries that allows the parties to avoid litigation in national courts. It
helps to resolve disputes among the international parties arising out of the internal
commercial agreements. Section 2(1)(f) of the Arbitration and Conciliation Act
defines international commercial arbitration as disputes arising out of the legal
relationship where one of the parties is a citizen, resident, or habitually residing out of
India. International commercial arbitration is used by the traders of different countries
as a way of settling their business conflicts.
Steps involved in International Commercial Arbitration are:
a.Notice of arbitration: To commence the proceedings of arbitration one party has to
provide the notice of arbitration under Section 21 of the Act, to the other party
requesting to refer the dispute to arbitration. When the respondent receives the notice
of arbitration, the proceedings of arbitrations begin. In this notice, there are two
essentials: one is the communication of an intention to refer the dispute to arbitration
and the other is that the other party to whom the notice has been served should take a
step towards it.
b.Referral to arbitration: The judicial authority can refer the subject matters of the
case to the arbitration if that agreement contains the clause of arbitration to settle the
disputes among the party if there are any. According to Section 8 of the Arbitration
and Conciliation Act, the judicial authority can refer the parties to arbitration if there
is an arbitration agreement.
c.Appointment of arbitrators: The parties are at their discretion to appoint the
arbitrator to decide their case. If the parties are not able to appoint the arbitrators
mutually due to some issues then the court allows the parties to appoint each arbitrator
and then these two arbitrators will appoint the third party who will be neutral. If the
parties fail to appoint, they can request the Supreme Court and High Court to appoint
the arbitrators. The High Court or the Supreme Court can appoint any person or
institution to appoint arbitrators. In the cases of International Commercial Arbitration,
the Supreme Court can appoint the arbitrators for the parties and in the cases of
domestic arbitrations, the High Court appoints the arbitrators.The challenge to the
appointment of arbitrators: The appointment of arbitrators can be challenged only on
these two criteria:

20
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:

a.A judge of the Supreme Court or

b.A judge of a High Court or
c.Chief Justice of a High Court or
d.An eminent person with expert knowledge in the conduct of arbitration.
Other members will include an eminent arbitration practitioner, an academician with
experience in arbitration, and government appointees.
Selection of arbitrators
In the same amendment Act, the provisions regarding the selection of arbitrators were
also modified. A person of any nationality can be an arbitrator in a case unless
specifically provided in the agreement. As per the new provisions, if the parties or the
two arbitrators(in the case of three arbitrators tribunal) are not able to appoint the
required arbitrator then the Supreme Court and High Courts have the responsibility to
designate arbitral institutions as per their respective jurisdictions. Parties to the dispute
approach the courts for the appointment of arbitrators to decide upon the dispute at
hand. Appointments for international commercial arbitration are made by the
institution designated by the Supreme Court. For domestic arbitration, appointments
are made by the institution designated by the concerned High Court. If a situation
arises in which no arbitral institutions are available, then the Chief Justice of the
concerned High Court may maintain a panel of arbitrators to perform the functions of
the arbitral institutions. An application for the appointment of an arbitrator is required
to be disposed of within 30 days, and the appointment of the arbitrator should take
place.
Also, as per the Arbitration and Conciliation (Amendment) Act, 2021, the previously
provided qualification criteria were removed and replaced with a provision that the
qualifications, experience, and norms for accreditation of arbitrators were to be
specified under the regulations.
Removal of arbitrators
24
The provisions for the removal of arbitrators are mentioned in Section 12(3). As per
Section 12(3), if the circumstances suggest that a person is either related to the parties
or has a self-vested interest in the dispute and will not be able to be impartial in the
proceedings, then removal proceedings can be initiated against the arbitrator. Also, an
arbitrator can leave the case in between in case of some special circumstances in
which he is not able to act according to the needs of the case and in that case a new
arbitrator is appointed. An arbitrator can also be removed if he/she misconducts in the
proceedings in any manner.
Role of arbitrators in arbitration
Now, talking about the role of an arbitrator in an arbitral proceeding, it is the same as
that of a judge in a judicial proceeding. An arbitrator plays the role of a private judge.
They are appointed by the arbitral institutions and their main roles include the
following:
a.Interpreting and applying the rules and laws applicable to arbitration
b.Managing the scope of investigation so that all the evidence and witnesses are
verified extensively
c.Conducting the arbitration hearing in which testimonials of both the parties are
submitted
d.Analysing the evidence and testimonials thoroughly
e.Making a decision to resolve the dispute
f.Declaring the arbitral award
g.While performing all the above functions within the capacity of an arbitrator, he/she
has to be impartial and should disclose all the facts required to be known by the
parties before the start of the proceedings.

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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.

So in respect of a particular dispute, the arbitral proceeding commences on the date on

which a request for that dispute to be referred to arbitration is received by the other
party. In order to determine the date of receipt, the provisions of Section 3 of the Act
must be looked into.
E.Rules and legislation
i.Limitation period
Section 43 of the Act provides that the Limitation Act, 1963 shall apply to arbitrations
as it applies to civil suit proceedings in the courts, except to the extent expressly
excluded by the Arbitration and Conciliation Act. Thus, the date of commencement of
arbitral proceedings assumes relevance for calculating the time-limit for arbitral
proceedings under the Limitation Act, 1963. Any arbitration proceedings commenced
after the limitation period, i.e., three years from the date on which the cause of action
arose, will be time-barred.
ii.Equal Treatment of Parties
Section 18 of the Act has two fundamental principles. Firstly, it provides that the
parties to an arbitration proceeding shall be treated with equality and secondly, that
each party shall be given a full opportunity to present their case. This section is a
mandatory provision and the arbitral tribunal has to comply with it. The tribunal has to
act in an impartial manner to the parties and no party has to be given an advantage
over the other.
iii.Procedure of Arbitral Proceedings
Section 19 of the Act recognises the right of the parties to agree on the procedural
rules which are applicable in conducting the arbitral proceedings. This provision
establishes the procedural autonomy of the parties.
28
When the parties fail to agree on a procedure or frame the procedure, it grants the
arbitral tribunal a wide range of discretionary powers to frame the arbitral
proceedings. The Act does not prescribe any default rules regulating the arbitral
proceedings.
This provision also provides that the application of the Code of Civil Procedure, 1908
or the Evidence Act, 1872 to the arbitral proceeding is also at the discretion of the
parties.
iv.Place of Arbitration
Section 20 of the Act provides that the parties are free to agree on the place of
arbitration and if they fail to agree then the arbitral tribunal has to determine the place
of arbitration in a judicial manner, considering the circumstances of the case and
convenience of the parties.
Also, the place of arbitration is of paramount importance because the laws of the place
of arbitration play a fundamental role in the arbitral proceeding. It determines the
substantive laws for the time being in force in India.
V.Language to be used in Arbitral Proceedings
Section 22 of the Act deals with the language which has to be used in arbitral
proceedings. The parties to the arbitration agreement are free to choose the language
or languages which have to be used in the arbitral proceedings. In cases where the
parties fail to arrive at such an agreement then it is the role of the arbitral tribunal to
determine the language or languages to be used in the arbitral proceedings. The
language shall also apply to any written statement by a party, any hearing and any
arbitral award, decision or other communication by the arbitral tribunal.
When the arbitral tribunal agrees on the language to be used in arbitral proceedings, it
may order that any documentary evidence shall be accompanied by a translation into
the language agreed. The arbitral tribunal must ensure that all the parties are able to
follow and understand the proceedings.
VI.Statement of Claim and Defence
Section 23 of the Act provides for pleadings of the parties before the arbitral tribunal.
After the arbitral tribunal has been established, the usual practice is to exchange and
file their pleadings before the tribunal.
The claimant states the facts and other relevant matters, while the respondent opposes
the facts and the averments made in the claim statement and contests the relief
claimed by the claimant. The contents of pleading may vary from case to case
depending upon the facts and circumstances of each case.
Within six months of the appointment of the arbitral tribunal, the statement of claim
and defence has to be completed under this section.
VII.Hearing and written proceedings
29
Section 24 of the Act discusses the manner in which arbitral proceedings are to be
conducted. In the absence of any prior agreement between the parties relating to this
matter, the arbitral tribunal has the power to decide whether the proceedings shall be
held orally or on the basis of documents and other materials.
VIII.Default of Party
Section 25 of the Act deals with three situations where the parties are at default.
Firstly, the arbitral tribunal terminates the proceedings when the claimant without
showing sufficient cause, fails to communicate his statement of claim in accordance
with Section 23(1). Secondly, the arbitral tribunal continues the proceeding when the
respondent fails to communicate his statement of defence in accordance with Section
23(1).
Thirdly, if there is sufficient cause then the termination is recalled and proceeding gets
restored.
IX.Appointment of Experts
Section 26 of the Act gives the arbitral tribunal power to appoint one or more experts
based on the requirement or request of the parties. It requires the parties to provide
relevant information to the experts.
Also, the arbitral tribunal cannot appoint experts and delegate the duty of
determination of the dispute.

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).
31
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;
32
(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.

(b) Appointment and Role of conciliators: 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. The parties follow any of the following methods.
(a) The parties themselves may name a conciliator or conciliators.
(b) Each party may appoint one conciliator & may mutually agree on the third
conciliator.
(c) The parties may enlist the assistance of a suitable institution a person 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 councilor
i.e. conciliator, who are appointed by the government for making settlement between
the parties before the trial & on the report of the councilor 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.

(c) Submission of Statement to conciliators: The parties competent to contract can

have the benefit of conciliation. Though the conciliator is appointed by the parties of
their own choice he is an independent & impartial person, who assists the parties in
independent & impartial manner in their attempt to reach an amicable settlement of
their dispute He is guided by
the principles of objectivity, fairness & Justice. He takes into consideration
circumstance surrounding the dispute, including any previous business practices
between the parties.The councilor can hold separate meeting with each party to further
clarity its case & to discuss the merits of the case, & to give the clear idea to the
requirement to substantiate the claims. The main aim should be to give clear idea of
the lacunas in the case to each many on their side. & to encourage them for
settlement .All the information received from one party, conciliation discloses that
information to the other party so that it may have an opportunity to present its
explanation, if any However if the party has given standing instruction not to disclose
the specific information to the other party, then in that case conciliator does not
disclose the same. Conciliator can hold required separate meetings as well as required
33
joint meetings, with the consent of both the parties. If the conciliator is of the view
that there is no scope for agreement i.e. settlement between the parties or there is
unwillingness to pursue conciliation the conciliator terminates the proceedings. Where
there is settlement between the parties, the conciliator holds a final joint sitting for
drawing up & signing a settlement agreement by the parties. The parties are bound by
the settlement agreement. The dispute is resolved in terms of the agreement. Where
the settlement is reached in pretrial proceedings of the family court or labour court the
settlement agreement can be enforced in the same manner as the judgment, decision of
the court. In the case of a matter referred for conciliation, during the pendency of the
arbitral proceedings & the law so provides the settlement agreement can be enforced
in the same manner as an arbitral award on agreed terms.

(d) Settlement Agreement:

The settlement agreement, notwithstanding anything contained in any law for the time
being in force, shall be treated as a confidential document and all the written
statements, documentary and other evidence and
procedure and relied upon by the parties, minutes of the conciliation meeting etc. shall
also have immunity from being produced elsewhere as a piece of evidence. This
element of confidentiality shall be equally binding not only on the conciliator but on
the parties as well. The only situation where the confidentiality element shall not have
any application is when its disclosure is necessary for the purpose of the
implementation and enforcement of the settlement agreement. Thus, no reference can
be made to the settlement agreement by the parties in any forum, except when its
contents are required to be disclosed, neither the parties nor the conciliator can make
public the contents of the settlement agreement or any other ma tter relating to the
conciliation proceedings. In conciliation procedure, parties & conciliator are bound by
certain inherent principles & discipline. Unless all the parties otherwise agree, the
conciliator is estopped from acting as an arbitrator or as a representative of a party in
any judicial or other proceeding in respect of a dispute which is or has been the
subject matter of conciliation proceedings in which he acts a conciliator. The
conciliator can not be presented by a party as a witness in any such proceedings
Similarly, parties can not rely on the followings as evidence in arbitrate judicial or
other proceedings.

a) views expressed or suggestions made by the other party in respect of a possible

settlement of the dispute.
b) admissions made by the other party in the course of the conciliation proceedings
c) proposals made by the conciliator.
d) the fact that the other party had indicated his willingness to accept a proposal for
settlement made by the conciliator.

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;

( i) On signing of the settlement agreement by the parties.

(ii) If no settlement of dispute is arrived at in any of the following mannera).By a
written declaration of the conciliator that further efforts at conciliation are no more
justified.
b) By joint written declaration of the parties that the conciliation proceedings are
terminated.
c) By the declaration of either party to other party & conciliator, that conciliation
proceeding is terminated. It is open to the parties to terminate conciliation proceedings
at any time before settlement. The conciliation proceedings can also be terminated:
(i) When the conciliator declares, after consultation with the parties, that any further
exercise on conciliation shall be an exercise in futility; or
(ii) When the parties jointly request the conciliator; or
(iii) When one party communicates to the other, with a copy to the conciliator, that no
more efforts be made in the conciliation matter.

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.

(f) Cost and deposits of Proceedings

g) Protection for Conciliation Proceeding
Arbitration is the most sought after legal remedy by everyone for the resolution of
commercial disputes. There can be many reasons for the same. To describe a few, this
mechanism provides the parties with a sense of freedom that they do not experience
while arguing in the courts. It allows parties to appoint an arbitrator of their choice, to
obtain a faster solution to the problem than the usual litigation process, and to be able
to discuss the issues confidentially. Arbitration also comes with procedural safeguards
that protect the rights of the parties from a potential breach. These are the
interlocutory or interim measures.
I.Interim measures by Courts : Section 9 of the Act empowers the courts to furnish
interim measures against either party to a particular dispute. The courts can grant
35
interim measures of protection as and when they think it fit to do so. Section 9 loosely
draws inspiration from the Article 9 of the Model Law, but it differs substantially from
the international provision. Article 9 states that the parties to the arbitration agreement
cannot move to the courts for interim protection. On the other hand, Section 9
provides that the parties can request such a grant by the courts. They can apply for the
same before or after the initiation of the arbitral proceedings. But even during these
prescribed periods, the interim protection must mandatorily relate to the subject matter
of the arbitration agreement. It must originate from the terms and conditions of the
same. If not, then the order so passed shall be void. Grant of interim relief is
dependent on the discretion of the courts. There are no set standards for the same.
II. Reliefs sought from Courts: Sub-section-1(ii) of Section 9 states that the courts
can accord interim reliefs in such circumstances as following:-

 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.

IV.Grant of interim relief in exceptional cases: Sub-section 3, the other insertion,

states that a court shall not hear an application made by any person concerning the
arbitration agreement seeking an interim relief after the constitution of the arbitral
tribunal unless the court finds that the relief granted by the arbitral tribunal is not
effective in the prevailing circumstances. Thus, this provision is of an exceptional
nature.

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).

VI.Interim measures by tribunals: Section 17 of the Arbitration Act provides

arbitral tribunals with the power to furnish interim measures. Article 17 of the Model
Law is the basis of Section 17. Article 17 states that an arbitral tribunal can take any
such step to provide interim relief to the parties on their request, as it may satisfy the
tribunal that the dispute in question necessitates the same. Whereas, Section 17
provides that either party can apply to the arbitral tribunal for an interim measure
before or after the arbitral awards’ delivery. But it must be before their enforcement.

VII.Reliefs sought from tribunals: It is essential to know that this particular

provision has gone through some significant changes introduced by the 2015
Amendment to the Act. Earlier, the tribunals could grant interim reliefs under any
circumstances. In short, the scope of the application of this provision was broader
back then. After the amendment was placed, several limitations came on to the
implementation of the same. Now, there’s a much-needed clarity on the kinds of relief
allowable by the tribunals. Sub-section 1(ii) of Section 17 states that the tribunals can
accord interim reliefs in such circumstances as the following:

 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:

 Granting or refusing to grant interim relief under Section-17;

 Approving the plea referred to in Section 16(2)

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.

Common mistakes in Mediation Advocay:

1.Aggressive negotiation is the most common mistake. ‘Aggressive’ means, a person
being harsh on the other party, also on problem. The party is trying to gain maximum
from the negotiating table can be termed as ‘win-lose’ negotiator. He firmly believes
that mediation is designed for own benefit. He believes in grabbing all possible gains
rather than creating a value on the mediation table. Sometimes such aggressive
negotiator gets a better deal. But he or she may damage the relationship in the process,
42
and may even precipitate a deadlock, thereby converting promising discussions to
breakdown unnecessarily.
2. Sober pacifier or win-win negotiator is in contrast to aggressive or win-lose
negotiator.: ‘Pacifier’ may be more focused on relationship and almost certainly is
more interested in making friends. Such ‘pacifier’, may fail to protect the interest in
tough encounters, as trade-offs are not always beneficial. In the name of long-term
relationship, naïve win-win negotiators (pacifier) may give up achievable gains.
3. The negotiators are expected to ‘profit’ their own parties. How does a negotiator
gain more by ‘giving in’? It is by creating more ‘value’. Therefore, the ‘value’ is
expected to be created by the negotiator. However, it is important to note that creation
of value is not a natural process but a process which has to be cultivated consciously.
It has to be practiced. It has to be mastered through experience. In this regard, the
common mistake is to overlook the importance of creation of ‘value’. This is a
common mistake where the negotiator spends time in claiming value rather than
creating it.
4. As mentioned above value can be created. When parties discuss, they discuss to
resolve the problem in hand. However, the same parties can overlook the existing
problem by looking at the future, as Voltaire said, ‘present is always pregnant with
future’. Therefore, the mediation should ensure ‘birth of future’ in a hale and healthy
condition.
5.The common mistake relating to ‘value’ creation is, almost all the time it is by
giving ‘discounts’ or ‘cash flow’. But ‘value’ can also mean precedent, relationships,
reputation, political appearance, fairness, or even how the other side’s self-image fares
in the process. 8 Another common mistake is ignoring the ‘interested parties’.
Therefore, the deal should be negotiated by keeping all the interested parties in mind.
4.Cansiderations of all interested parties: Listing all the interested parties is important
part of mediation which is generally ignored. On the contrary, it is again a mistake to
involve too many parties for mediation. Too many cooks spoil the broth. Too many
parties can complicate the mediation unnecessarily. However, including all necessary
parties is important.
5.Not expecting to invite all stake holders under one roof, across one table. Another
mistake is ignoring ‘cultural dimensions’. Cultural dimensions to the mediation
process pose a unique challenge. A buyer from business community or agricultural
background, salaried employee, they come with different cultural background.
6. The negotiator should take into account all the people who are involved in
implementation of the agreement. The mediation may have been organized between
highest authorities of the entity and it would be implemented by lowly placed officer,
it is advisable to include those lowly placed officials in the mediation process.
7.Recognition and listening to the involved persons helps in getting commitment.
Another most common mistake committed during mediation is forgetting the purpose
43
of mediation. Many of the parties negotiate to exploit other party or to protect the
relationship. Many people tend to think of mediation as an event, where we sit at a
table with someone, playing the mediation game, trying to satisfy our own interests by
squeezing or perhaps by engaging in collaborative problem-solving mode.
8. Chances of common mistake surges, when immediate substantive gain precedes
over current or future relationships. Such mistakes includes Misrepresentation occurs
in mediation where a person deliberately takes a position on something which is not
true in some way.
9. Another compelling factor which encourages misrepresentation is lack of
knowledge of other party. When a person is aware that, the other party is a newcomer
and has no previous experience in negotiations or dealings, the expert would definitely
misrepresent the factual situation.
10. Bluffing is stating or indicating interest to commit some action with no intention
to perform. For example, an owner promises to do complete repair before selling the
car, which he never intendeds to do. Employer threatens a workman of disciplinary
action, when he never had intention to do. The bluffing is mostly adopted against the
end user or customer. Bluffing is quite different from misrepresentation, on the face of
it both relates to wrong representation of facts.

44