Unit1

Q1: ADR, its advantages and disadvatages various types of process evolution of
ADR in india

Answer

Introduction: The modern legal system has become very complex and due to
these complexities, the poor and neglected segment of society suffers a lot. In
order to cope up with this disadvantage a new segment namely alternative
dispute resolution emerged. Under ADR parties resolve their issues without
appearing before the court. Alternate dispute resolution or ADR refers to the
varied methods by which disputes are resolved between the parties without the
use of litigation.
In India, ADR is established on the basis of Article 14 (Equality before law) and
Article 21 (Right to life and personal liberty) under the Constitution of India. The
Directive Principles of State Policy (DPSP) of Equal justice and free legal aid as
engraved in Article 39-A of the Indian Constitution can also be achieved by the
ADR.
Meaning:
 Alternative Dispute Resolution (ADR) refers to any means of setting
disputes outside of the Court Room.
 Alternative Dispute Resolution (ADR) refers to a variety of processes that
help parties to resolve disputes without a trial.
Definition
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.
Alternative Dispute Resolution (ADR) Mechanisms
  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.
Advantages of ADR
1) Flexible: The proceedings taken in the court possess a certain level of rigidity.
However, Alternative Dispute Resolution mechanisms are flexible in nature.
2) Fast-track Procedure: As the mechanisms of alternative dispute resolution
involves less or no formalities as well as technicalities, the decisions are
resolved at a faster pace. Furthermore, decisions are taken in the best interest
of both parties.
3) Confidential: A level of confidentiality is maintained as the proceedings does
not take place in an open court in front of various spectators.
4) Finality of awards: The award given under alternative dispute resolution
(Arbitration) is final and binding and if one needs to file an appeal against
awards so given, it can only be sought by opting for litigation.
5) Cost: When compared to litigation, alternative dispute resolution is
considered to be cost-effective.
6) Choice of mediator or arbitrator: Alternative dispute resolutiongives parties
the choice of selecting the mediator or arbitrators of their own choice.
7) No fear of court: Some people usually have a fear of court in expressing their
issues freely. ADR stands out to be quite advantageous in such a case.
Thus, these mechanisms totally condemn the statement “Justice Delayed is
Justice Denied”. This is so because ADR is denoted as a fast-track system where
parties can seek justice at a faster pace.
Disadvantages of ADR
 ADR is not helpful where a dispute is to be decided on the basis of a
precedent.
 When there is a need for court and interim orders, ADR would not be
useful.
 ADR is less suitable when there is a need for enforcement.
 When there is a need for live and expert evidence and analysis in a case,
then ADR would not be useful.
  When there is an imbalance of power, between the parties in the dispute,
then ADR would not work.
 If the case is of a complex nature, then the adjudicating body must look
into minor details and may need expert advice and suggestions. Here,
ADR would probably not work.
Limitations of Alternative Dispute Resolution:
Numerous disadvantages are blocking the approach of winning dispute
resolution and often distressing both parties attitude to reconcile for a
comprised decision some of the disadvantages are:
(a) Uneven Negotiating Command:In convinced situations, one side is capable to
have power over the other. For that reason, a noteworthy discrepancy of power
exists. E.g.: Employment and annulment cases, making the courts an improved
alternative for a weak party.
(b) Short of Legal Expertise:Where an argument involves complicated legal
points a mediator or arbitrator is doubtful to have the same legal proficiency
and knowledge as a judge. The dispute can be of a range of situations such as
viable conflicts, social conflicts, legal conflicts, and many others which
necessitate dedicated mediators. Most of the cases, the mediator does not
acquire a judge's perspective.
(c) No Organization of Specific mock-up :It is not easy to envisage the conclusion
of a dispute determined through ADR as there is no method of precedent.
Therefore, it is easier to get evidence from the other party in a lawsuit. Short of
system fallout in the restricted prediction of outcomes.
(d) Enforceability:Usually, ADR is not lawfully compulsory making any award
complicated to implement Legal arbitration has some kind of course of action
for internal appeals, which enables the assessment as an obligatory and only
issue to the assessment of Court.
(e) Required Court Action:The arbitrator’s verdict can necessitate a court action
if one of the parties declines to acknowledge the arbitrator's conclusion. This
would not only generate pandemonium but also an obligatory review by the
court. Thus, ADR occasionally elevates the question of biasness of the
arbitrator’s pronouncement. Also, there is a very flawed panorama for judicial
assessment of an arbitrator’s decision.
(f) Limits Discovery Process:ADR normally happening without the fortification
obtainable parties in litigation, such as those rules administrated during
innovation. Courts commonly allocate an enormous arrangement of leeway in
the sighting procedure, which is not vigorous in substitute dispute resolution.
Conclusion
India is touching the ray of light of judicial equal opportunity. The ADR system
acts as an underneath agent to step up the ladder of justice for all. The ADR
association needs to be approved onward with superior alacrity. This will
significantly condense the load on the courts separately from providing
instantaneous justice at the door-step, without the sizeable cost being caught
up. If they are productively given consequence then it will accomplish the goal
of interpretation social justice to the parties to the dispute.
 Limitation
 kinds
 Conclusion

Evolution of ADR in india:

 In ancient India when there was Kulas, people used to live in joint families
with their clans and when there was caste system prevalent in the
society. The disputes among the kulas were resolved by the head of the of
the family, clan or Kula. Likewise, when there was common trade,
corporations or Shrenis among the people, they used to appoint person to
resolve the disputes within the Shrenis.
 Pre- Independence: British rule: During the British rule in India, many
legislations were introduced and a drastic change came in the
administration of India. In 1772, the courts were empowered to refer
disputes to arbitration either at the request of the parties or by its own
discretion. Then after a decade, in 1859 The Code of Civil Procedure was
enacted, sections 312 to 327 of the act mentioned arbitration but in 1882
the sections relating to arbitration was repealed. In 1899 The Indian
Arbitration Act, 1899 was enacted to give effect to alternate dispute
mechanism in India. The act was based on the English legislation. Then in
1908, CPC was again amended and section 89 with second schedule gave
wide powers to the courts to refer the disputes to ADR mechanism.
Then, The Indian Arbitration Act, 1899 and section 89 read with second
schedule of Code of Civil Procedure, 1908 were two effective legislation to
deal with arbitration. Thereafter, in 1937 Geneva Convention was signed
and adopted by India and a parallel legislation was introduced in the form
of The Arbitration (Protocol and Convention) Act, 1937. In 1940, The
Indian Arbitration Act, 1899 and section 89 with second schedule
of CPC was repealed and replaced by The Arbitration Act, 1940.
 In local levels Panchayats were very effective in resolving the disputes in
villages in India
 Post- Independence Era:
o The Arbitration (Protocol and Convention) Act, 1937 for
the enforcement of foreign awards and The Arbitration
Act, 1940 for referring disputes to ADR mechanism were
presently in force in India. Then in 1961, India became
signatory to the New York Convention and The Foreign
Award (Recognition and Convention) Act, 1961 was
enacted.
o In 1981, in M/S Guru Nanak Foundation vs. Rattan Singh
& Sons, the Supreme Court described the Arbitration Act,
1940 in off- quoted passage. It observed that “the way in
which the proceedings under the act are conducted and
without an exception challenged in courts, has made
lawyers laugh and legal philosophers weep. Experience
shows and law reports bear ample testimony that the
proceedings under the act have become highly technical
and accompanied by unending prolixity, at every stage
providing a legal trap to the unwary.”
o In 1985, the UNCITRAL model law was adopted and signed by
India on International commercial arbitration.
o In 1996, finally The Arbitration (Protocol and Convention) Act,
1937; The Arbitration Act, 1940 and The Foreign Award
(Recognition and Convention) Act, 1961 was repealed and
consolidated in a single piece of legislation following the
UNCITRAL model law, the act was called the Arbitration and
Conciliation Act, 1996. to make the act more effective and
efficient Section- 89 with Order- X (Rule- 1A to 1C) was re-
introduced in CPC in 2002. The act of 1966 was amended twice
in 2015 and 2019. However, to deal with ADR mechanism we
 have a consolidated, single, effective, efficient and a good piece
of legislation.
 222nd Report of the Law Commission of India, the Constitution has
guaranteed access to justice for all, primarily through Article 39A, which
states that everyone must have an equal opportunity of getting justice
and this must not be denied to any citizen by reason of economic or other
sort of disabilities. 
 The report further states that ‘access to justice’ for the common masses in
India means access to the courts of law. But even that has been hindered,
due to factors like poverty, illiteracy, ignorance, social and political
backwardness etc. 
 In a developing country like India, many people still live in poverty. When
their rights get violated, they often do not have the money to fight long
battles in the Court. They do not have the money to afford a lawyer. They
do not know the legal system and procedures. Therefore, they often think
that the court system is an inconvenience. 
 These kinds of inefficiencies are shared reasons among many countries,
which is why ADR is being explored. The courts also have too many
pending cases and these cases keep going on for many years which is a
tremendous burden to the courts. 
 These reasons prompted the Indian Government to enact Section 89 of
the Code of Civil Procedure, 1908 and replace the earlier Arbitration
Act,1940 with The Arbitration and Conciliation Act 1996, in accordance
with the mandates of the United Nations Commission on International
Trade Law (UNCITRAL).
 Case Law: In ONGC vs. Collector of Central Excise there was a dispute
between the public sector undertaking and Government of India involving
principles to be examined at the highest governmental level. Court held it
should not be brought before the Court wasting public money any time.
 In Chief Conservator of Forests vs. Collector it was said that State/ Union
government must evolve a mechanism for resolving interdepartmental
controversies- disputes between department of Government cannot be
contested in court.
Important Provisions Related To ADR
 Section 89 of the Civil Procedure Code, 1908 provides that opportunity to
the people, if it appears to court there exist elements of settlement
 outside the court then court formulate the terms of the possible
settlement and refer the same for: Arbitration, Conciliation, Mediation or
Lok Adalat.
 The Acts which deals with Alternative Dispute Resolution are
i. Arbitration and Conciliation Act, 1996 and,
ii.The Legal Services Authority Act, 1987
Importance of ADR In India
 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.
 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.
Types of Alternate Dispute Resolution mechanisms
Various Alternative Dispute Resolution mechanisms can be classified as:
1. Arbitration
2. Conciliation
3. Mediation
 4. Judicial Settlements inclusive of Lok Adalats
5. Negotiations
Alternative Dispute Resolution often referred to as ADR, is a set of methods or
techniques that allow parties to a dispute to reach an amicable settlement. It
consists of ways in which parties can settle their differences without recourse to
litigation. Alternative Dispute Resolution (ADR) methods are now widely
accepted and have been gaining recognition at the national as well as
international level. Modes of ADR have been in existence from a long time and
were used long before the sophistication of civilization.
ADR involves continuous efforts made by a third party, who is neutral and
assists the disputing parties to come to a settlement. The qualification and the
skill of the neutral third party vary, concerning the modes of dispute
resolution.  
ADR is a vast topic and includes a broad range of activities. Legal luminaries
Nancy Atlas, Stephen Huber, and Wendy Trachte in their 'Alternative Dispute
Resolution: The Litigator's Handbook,' has defined ADR as being:
"Anything except a bench or jury trial under the auspices of some judicial body."
In simple words, ADR, as the name suggests, is nothing but an alternative
method to litigation to resolve disputes that exist between individuals or
organizations.
Nowadays, due to the vast resources required for litigation, people prefer
alternative dispute resolution methods to settle matters which do not require
the intervention of judicial authority.
Methods of Alternative Dispute Resolution System
The techniques or modes of ADR, though widely accepted all over the world,
may vary from region to region. This fluctuation depends on the legal
framework of a country. The following are the methods of settlement that are
widely accepted:
 Arbitration
 Mediation
 Conciliation
 Negotiation
Arbitration
Arbitration is a mode of ADR wherein the dispute between the parties goes
through a process to achieve an amicable resolution by an impartial third party
known as an 'arbitrator,' without recourse to litigation.  In the case of
arbitration, the arbitrator, after reviewing the dispute between the parties
comes to a settlement. Such a decision taken by an arbitrator shall be binding
on both parties. Unlike other methods of dispute resolution, once the parties
have submitted a matter to arbitration, neither can withdraw from the
procedure.
Arbitration can either be voluntary or mandatory. In the case of compulsory
arbitration, the parties to the dispute enter into Arbitration either under a
statute, an order of the court, or through a specific clause included in the
contractual agreement between the parties. Whereas on the other hand, in the
case of voluntary arbitration, it is up to the discretion of parties to enter into
arbitration. The decision that results from the proceeding is known as an
'arbitral award.'
Advantages of arbitration:
 Flexibility- Arbitration proceedings are flexible and more economically
feasible compared to litigation.
 Time-Consuming- Arbitration proceedings occur at an expeditious rate as
compared to Litigation; therefore, it saves time for both parties.
 Confidentiality- The disputes which are subject to arbitration are treated
with privacy, and are not released to the public.
 Arbitrator- The parties have the liberty to choose an arbitrator to handle
their dispute.
 Enforceability- Arbitration awards are generally easier to enforce as
compared to court verdicts.
Disadvantages of arbitration:
 If arbitration is mandatory as per the contract between the parties, then
their right to approach the court is waived.
 There is a very limited avenue for appeals.
 Arbitration does not provide for the grant of interlocutory applications.
 Arbitration awards are not directly enforceable; they are executable
subject to judicial sanction.
Mediation
Mediation is a mode of dispute resolution, where an amicable decision arises
with the help of a third party known as a 'mediator,' without recourse to the
court of law. It is a voluntary process, and unlike arbitration, it is more flexible;
therefore, the parties to the dispute are under no obligation to agree to the
settlement. Thus, an agreement taken via mediation shall be binding upon the
parties, only as long as they agree to it. There may be instances where parties
are advised to adhere to Mediation, however, under such circumstances, the
result is up to the parties. Therefore, Mediation is a process where the parties
are in total control over their final settlement. Here, the mediator only acts as a
facilitator and does not interfere in the decision of the dispute. Therefore, it is a
win-win pact.
Advantages of mediation:
 Parties have complete control over the settlement.
 Less stress as compared to litigation and arbitration.
 The relationship between the parties isn't overly damaged.
 Mediation proceedings are confidential.
 The process resolves the dispute quickly.
Disadvantages of mediation:
 Since the decision is at the discretion of the parties, there is the possibility
that a settlement between the parties may not arise.
 It lacks the support of any judicial authority in its conduct.
 The absence of formality- Mediation proceedings are lacking in any
procedural formality since they are not based on any legal principle.
 The truth of an issue may not be revealed.
Conciliation
Conciliation is a method of dispute resolution wherein the parties to a dispute
come to a settlement with the help of a conciliator. The conciliator meets with
the parties both together and separately to enter into an amicable agreement.
Here, the final decision may be taken by reducing tensions, improving
communications, and adopting other methods. It is a flexible process, therefore
allowing the parties to define the content and purpose of the proceeding. It is
risk-free and is not binding upon the parties unless they sign it.
Advantages of conciliation:
 Flexibility: Since the conciliation process is informal, it is flexible.
 The conciliator is often an expert in the disputed field.
 Conciliation proceedings, like any other form of ADR, is economical as
compared to litigation.
 The parties to the dispute have the liberty to approach the court of law, if
unsatisfied with the proceeding.
Disadvantages of conciliation:
 The process is not binding upon the parties to the dispute.
 There is no avenue for appeal.
 The parties may not achieve a settlement to their conflict.
Negotiation
Negotiation is a method of dispute resolution whereby a dispute between two
individuals or groups is settled amicably by an impartial third person called as a
negotiator, using different techniques. The negotiator, in this form of resolution,
uses various communication methods to bring the parties of the dispute to a
settlement. The primary aim of this type of dispute resolution is to reach an
agreement that is fair and acceptable by the parties. The parties engage in the
dispute with each other until they reach a desirable outcome for all involved.
Advantages of Negotiation:
 Flexibility: since negotiation is an informal process, it is relatively flexible.
 Quick resolutions as compared to litigation.
 It facilitates in maintaining a healthy relationship between the disputing
parties.
 Takes place in a private environment
Disadvantages of Negotiation:
 The parties to the dispute may not come to a settlement.
 Lack of legal protection of the parties to the conflict.
 Imbalance of power between the parties is possible in negotiation.
Difference between different types of Alternative Dispute Resolution (ADR)
systems:
ADR Methods- Arbitration Mediation Conciliation Negotiation
Neutral Third Facilitator,
Adjudicator Facilitator Facilitator
Party- Evaluator
Nature of the Not legally Not legally Not legally
Legally Binding
Proceeding- binding binding binding
Level of
Formal Informal Informal Informal
Formality-
Confidentiality Confidentiality
Level of as Confidentiality as Confidentiality
Confidentiality- determined by based on trust determined by based on trust
law law
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
Conclusion: There are many other dispute resolution methods, like med-arb,
mini trial, summary jury trial etc. But arbitration, mediation and Lok Adalats etc
are the most commonly used techniques of ADR in India. Throughout the world,
ADR has been slowly becoming the favored choice for parties, but India still
relies a lot on litigation. However, with the development of these ADR methods,
and in an effort to improve access to justice, ADR is being seen as a necessity.
Legal recognition should be given to all ADR methods including negotiation as
they are viable and convenient., and it would help to ease the burden of the
courts. 
Conclusion
The various modes of Alternative Dispute Resolution (ADR) systems as discussed
above, hold many similarities as well as differences. These methods provide
diverse techniques, which help a party to a dispute to amicably settle their
dispute. These modes of dispute resolution are now widely accepted and
applied in numerous areas of dispute

Q2. Mediation 
Answer:
Introduction: Mediation is an age-old procedure of dispute resolution rehearsed
since vedic period. It is a low cost, keeping the issues, particularly family matters
secret among three parties, two parties and the mediator. Also, the solution
isn't forced on any party, it is a solution that both the parties consented to. It, in
this manner gives an effective solution in a tranquil way.
What is Mediation: Mediation is an alternative method of resolving disputes
without resorting to the courts. It is a structured, voluntary and interactive
negotiation process where a neutral third-party uses specialized communication
and negotiation techniques to help the parties in fulfilling their stated
objectives. As a party-centred process, it focuses on the interests, needs and
rights of the parties.
Definition: According to Black Law Dictionary, “Mediation is a method of non-
binding dispute resolution involving a neutral third-party who tries to help the
disputing parties reach a neutrally agreeable solution.”
Mediation in India – Historical Analysis
 In India, the law and practice of private and transactional commercial
disputes without court intervention can be dated back to ancient times.
Arbitration or mediation as an alternative to dispute resolution by
municipal courts has been prevalent in India from Vedic times. The
earliest known treatise is the Bhradarnayaka Upanishad, in which various
types of arbitral bodies viz
(i) the Puga 
(ii) the Sreni
(iii) the Kula.
These arbitral bodies, known as Panchayats, dealt with variety of disputes, such
as disputes of contractual, matrimonial and even of a criminal nature. The
disputants would ordinarily accept the decision of the panchayat and hence a
settlement arrived consequent to conciliation by the panchayat would be as
binding as the decision that was on clear legal obligations.
Mediation India are divided into two types which are generally followed:
1. Court referred Mediation:
The court may refer a pending case for mediation in India under Section 89 of
the Code of Civil Procedure, 1908. This kind of mediation is often used in
Matrimonial disputes, particularly divorce cases.
2. Private Mediation:
In Private Mediation, qualified personnel work as mediators on a fixed-expense
premise. Anyone from courts, to the general population, to corporates as well
as the government sector, can appoint mediators to resolve their dispute
through mediation.
Fundamental Rules Of Mediation Are As Follows
1. A neutral mediator to conduct the mediation: A mediator should always be
neutral, having no personal or monetary interest in the dispute, or in either
party.
2. Self-determination of the parties: Mediation is a process that is based on the
self-determination of disputant parties that is to say that the parties can make
free choices keeping their interest in mind. The mediator is thus responsible to
conduct the process whereas the parties determine the outcome of the
settlement.
3. Confidentiality: The very essence of mediation is its confidentiality. The
mediator should take note:
ØThat she and the parties shall maintain confidentiality in all the matters
relating to the mediation proceedings. The confidentiality shall extend to the
settlement agreement, unless there is a necessity for the disclosure in order to
implement and enforce it.
ØThat it is not legally permissible for her, unless otherwise agreed to by the
parties, to act as an arbitrator or witness in any arbitral or judicial proceeding
with respect to the dispute which is the subject matter of mediation
proceedings and the parties are also not allowed to introduce such evidence.
ØThat the only information regarding the behavior of the parties might be
reported is: whether the parties appeared at a scheduled mediation and
whether or not they reached a solution.
4. Fairness of process: The mediation process should be a fair one. The parties
should be treated fairly and not arbitrarily and that their concerns should be
addressed properly.
5. Voluntary process: The mediation process is impossible without the consent
of the parties involved. The parties are bound once they sign the settlement
arrived at during mediation.
Advantages of Mediation:
 Control- It gives the parties control over the scope of the mediation in
terms of the issues discussed,  and its outcome, with regard to the terms
of the settlement and to settle or not.Control is vested not with a judge or
jury, but the parties themselves and helps them in reaching a mutually
agreeable solution.By giving control to the parties, it may also result in
the settling of related and connected issues and disputes.
 Consent-based- Based on voluntary consent, it allows any party to opt out
at any stage if they find mediation to be unhelpful.
 Participation- It allows the parties to directly participate in the
negotiation and present the case in their own perspective.
 Economical-  Mediation takes less time to resolve disputes than standard
legal channels. While courts may take months or years to pronounce
judgements in cases, mediations take mere hours. According to figures
released by the Bangalore Mediation Centre, while the mediation process
can take a maximum of 60 days, the average time taken to settle a case is
a mere two hours.
  Confidentiality- Mediations remain strictly confidential, with the terms of
the mediation being known only to the parties involved and the mediator.
This aids in better and effective communication between the parties.
 Conducive to dispute resolution-  By providing a procedure that is simple
and flexible, mediation can be modified to the demands of each case and
allows the parties to carry on with their day to day activities. It thus
created an informal, cordial and conducive environment for dispute
resolution.
 Mutuality- Since parties to a mediation are amenable to mutually working
towards a solution, they are more receptive to the other party’s side. This
aids in restoring the relationship between the parties and settles the
dispute in a mutually beneficial manner.
 Support by mediator- As a neutral, impartial and independent third-party,
mediators ensure that the mediation remains a fair process. They also
guide the parties through the process as neutral facilitators, encourage
creativity in resolution and broaden the range of solutions.
 Finality- Mediation promotes finality in dispute resolution as there is no
scope for an appeal, a revision or further litigation on the successful
conclusion of a mediation.
 Refund of court fees- Court-referred mediation also allows for a refund of
court fees in cases of settlement.
Laws Governing Mediation in India
 Mediation first came to be legally recognised as a method of dispute
resolution in the Industrial Disputes Act, 1947.
 In 1999, the Code of Civil Procedure Amendment Act was passed by the
Parliament. It provided for Section 89 of the Code of Civil Procedure, 1908
which allowed the courts to refer to alternative dispute resolution (ADR)
methods to settle pending disputes.
 Under this, consent of the parties was made mandatory and the court
could refer cases for arbitration, conciliation, judicial settlement
through Lok Adalat, or mediation.
 Moreover, the Civil Procedure- Mediation Rules, 2003 provide for
mandatory mediation under r. 5(f)(iii). These allow the court to refer
cases for mediation even when the parties are not ready for reference for
mediation if there is an element of settlement.
Conclusion: Mediation as an alternative dispute resolution process has been
successfully utilized in matrimonial disputes and corporate affairs to locate a
prompt solution which isn't just efficient and financially effective yet
additionally keeps the whole dispute process private. The procedure of
mediation in India is adaptable as it works two-ways by helping disputing
parties to mutually resolve their issue and reducing the burden of pending cases
on the courts.

Q3: Role of ADR in Family Disputes

Answer:
Introduction: All families at certain times experience difficulties which can be
named as a family dispute. Similar controversies range from matters similar as
controversies between husband and woman, relationship breakdowns,
children's interest, monetary support for children and property agreement.
The Family Courts Act explains family disputes as:
 A suit between parties to a marriage for decree of nullity, restitution of
conjugal rights, judicial separation or dissolution of marriage.
 A declaratory suit with respect to the matrimonial status of a person.
 A suit between parties in a marriage with respect to the property of the
parties or either of them.
 A suit seeking for an instruction in the event of certain circumstances
arising in a marital relationship.
 A declaratory suit with respect to the legality of any person.
 A suit for financial support or maintenance.
 A suit with respect to the custodianship or guardianship of a minor.
Family Law Arbitration
 Family Law arbitration is a process in which a hubby and woman, agree to
submit one or further issues arising out of their present or previous
relations as consorts and/ or their relations as parents of the same child
or children, to a neutral third party or parties for a resolution that will be
final and binding on them.
 However family law arbitration isn't confined to conjugal matters alone. It
also entails finding a resolution to issues similar as guardianship of
children and their weal, conservation and fiscal support and other
ancillary issues.
Role
 Hence, the role of lawyers in promoting non-adversarial dispute
settlement mechanisms is undoubtedly very significant. The ADR
techniques mainly include arbitration, conciliation, mediation, and
negotiation. In India, Lok Adalat stands as another additional form of ADR
 mechanism, which combines different techniques like conciliation,
mediation, and negotiation.
 Arbitration is a process for settlement of disputes fairly and equitably
through a person or persons or an institutional body without recourse to
litigation by the disputing parties pursuant to an agreement. It may be ad-
hoc, contractual, institutional, or statutory. A neutral third person chosen
by the parties to the dispute settles the disputes between the parties in
arbitration. Though it resembles the court room based settlement, it
involves less procedure and parties' choice of arbitrator. It exists with the
established less cumbersome process and it is quite useful in resolving
different kinds of disputes including international commercial disputes. At
present, arbitration is the only legally binding and enforceable alternative
to ordinary court proceedings.
 Conciliation is a private, informal process in which a neutral third person
helps disputing parties to reach an agreement. It is a process whereby the
parties, together with the assistance of the neutral third person or
persons, systematically isolate the issues involved in the dispute, develop
options, consider alternatives and reach a consensual settlement that will
accommodate their needs. Usually, the conciliator in this process would
independently investigate the dispute and draft his report indicating the
method of settlement of disputes.
 Mediation involves the amicable settlement of disputes between the
parties with the help of a mediator. The task of the mediator is to bring
the parties together to the process of amicable settlement of their
disputes. A mediator would influence the parties to cut down their
demands with a view to reaching a mutually acceptable solution. Hence,
the mediator plays the role of a facilitator in attaining cooperation
between the parties to the dispute. Mediation lays emphasis on the
parties' own responsibilities for making decisions that affect their lives
instead of a third party judging the fate of parties to the dispute.
 Negotiation closely resembles mediation. However, it is more often
referred to as a method wherein the parties to the dispute themselves
would settle their disputes. The negotiation process provides the parties
an opportunity to exchange ideas, identify the irritant points of
differences, find a solution, and get a commitment from each other to
reach an agreement.
Lok Adalat is a unique system developed in India.
  It means people's court. It is a forum where voluntary effort at bringing
about a settlement of disputes between the parties is made through
conciliatory and persuasive means. It encompasses negotiation,
mediation and conciliation as tools to settle disputes between the parties.
Lok Adalats have been given the powers of a civil court under the Code
Civil Procedure.

All families at certain times experience difficulties which can be named as

a family dispute. Similar controversies range from matters similar as
controversies between husband and woman, relationship breakdowns,
children's interest, monetary support for children and property
agreement.
Indian Law provide for Arbitration of Family Matters
 All matters which may form the subject- matter of civil action affecting
the rights, or in other words all disputes between parties relating to
private rights or obligations which civil Courts may take cognizance within
the meaning of Section 9 of the Civil Procedure Code 1908 may be
appertained to as arbitration.
This, thus, makes family disputes suitable for arbitration. Still, this can be
done within the limits set by the law. An arbitrator can not grant a
divorce or an dissolution but can decide on certain other things such as
how to divide property.
At this juncture, it's essential to make a note of two important provisions
of the Code of Civil Procedure:
 Section 89 of the Code of Civil Procedure Settlement of disputes outside
the Court
 Order XXXIIA 6 of the Code of Civil Procedure Suits Relating to Matters
Concerning the Family.
Case Laws
Baljinder Kaur v. Hardeep Singh
Parties filed a petition before the court for divorce. Court before granting
divorce, attempted reconciliation between parties stating that reconciliation as
a form of alternative resolution of disputes is mandatory in divorce proceedings.
Court then accepted the divorce petition stating that the main aim should be
preserving the institution of marriage and its sanctity. The emphasis should be
on bringing parties to mutual agreement and not to focus strictly on the rules of
procedure.
Love Kumar v. Sunita Puri
In this case, one of the parties did not appear before the court at the time of
reconciliation proceedings due to which court passes a decree of divorce. When
the matter was taken before the High Court, the decree was set aside stating
that the main aim of the courts in divorce proceedings must be to bring parties
to mutual agreement. The lower court acted in haste to pass the decree of
divorce here.
Suggestions And Reforms
Institution of marriage shouldn't be viewed as a dispute where parties aim to
beat the other, but instead should be viewed as a holy institution wherein
parties need to be brought to an amicable result whenever disagreement arises.
Reconciliation should be endeavoured so as to not disrupt the family structure
or the societal structure.
The development of mediation in the resolution of family disputes in India holds
enormous pledge, and will surely strengthen the system's capacity to deliver
justice. Mediation and Conciliation must be made compulsory in family
controversies as it would help save the institution of marriage to some extent
and will also divert the court's approach to prefer agreement.
There's a need to give further authority to family courts wherein all the family
disputes are tried to be solved by family courts through conciliation and
collective agreement. Also, further family courts must be established so that
family courts are sufficient enough to resolve all similar cases and the burden of
higher judiciary is lessened.
Conclusion
Thus, although not mandatory, giving alternate modes of dispute resolution a
chance in the resolution of family matters is the norm of Indian legal system.
This practice should actually be given all the support that it can be given.
Concluding for out of court agreements proves beneficial not only to the parties
but also to the general public. The parties are advantaged through reduced
costs and time lost, while the courts are a little less burdened. This allows for
the speedy redress of other suits.

Q. Conciliation under CPC

Answer:
 The Code of Civil Procedure (Amendment) Act, 1999 inserted  Section 89
providing for settlement of disputes outside the Court
and additionally inserted Rules 1 A, 1 B, 1 C to Rule 1 of Order X to the
 Code. Section 89 confers the jurisdiction on the court to refer a dispute
to an ADR method, whereas Rules 1 A to 1 C of Order X lay down the
way in which the jurisdiction is to be exercised by the court. The court
explains the alternatives concerning ADR method to the parties, permits
them to take a method by consensus, and
if there's no consensus, proceeds to choose the method.
 Dispute settlement outside the Court (Section 89) Section 89 of the Code
of Civil Procedure, 1908 provides for the settlement of disputes outside
the Court and makes a provision that once it seems to the court that there
exist components of a settlement which can be acceptable to the parties,
the court shall formulate the terms of settlement and provide them to the
parties for observations and when receiving the observations of the
parties, the court could develop the terms of a doable settlement and
refer for—
(a) Arbitration;
(b) Conciliation;
(c) Judicial settlement together with settlement through Lok Adalat; or
(d) Mediation
 Further, Section 89 provides that when a dispute is referred for
arbitration or conciliation, the provisions of the Arbitration and
Conciliation Act, 1996 shall apply as if the proceedings for arbitration or
conciliation were referred for settlement under the purview of the
provisions of Arbitration and Conciliation Act, 1996. In case of Lok Adalat,
the provisions of sub-section (I) of Section 20 of the Legal Services
Authorities Act, 1987 shall apply.
  In regard to the above provisions, a compulsory duty has been assigned
to the civil courts to endeavour for settlement of disputes through an
ADR procedure.
  The objective of Section 89 is to confirm that the court
makes an endeavour to facilitate out-of-court settlements through  ADR
processes before the trial commences.
  Thus, Alternative Dispute Resolution (ADR) which at
one time was thought of as a voluntary act on the part of the parties
has currently obtained statutory recognition with the enactment of
Arbitration and Conciliation Act, 1996, Legal Services Authorities Act,
1987, and also the incorporation of ADR mechanisms envisaged
in Section 89 and Order X Rules 1 A, 1 B and 1 C within the Code of Civil
 Procedure, 1908 is an extra radical step taken by law-makers for
promoting ADR in India. Thus, the Indian law-
makers have currently created adequate provisions in law to facilitate
introduction of ADR mechanisms in India.
 There is flexibility within the use of ADR procedures. The flexibility is
available within the procedure and also within the process to get to a
decision .The solutions may be problem-specific. The rigidity of precedent
as utilized in adversarial technique of dispute-resolution would not
interfere in the way of finding solutions to the disputes with creative
means.
  Thus, the growth of ADR strategies can give access to
several litigants. It’ll facilitate in reducing the excess work
load that's placed on the judiciary. Once the cases unfinished before the
judiciary become manageable, the courts would be able to improve the
standard of their decisions. This would have a great impact in improving
not only the access to justice but even the standard of justice.