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ABC of Alternative Dispute Resolution in India

Society since its inception has faced a lot of disputes and conflicts and settlement of these problems have become an essential part of it, Court settlement though is well accepted but has suffered a lot of disadvantages due to its cumbersome codes and rigid procedures. The Alternate Dispute Resolution system in recent times is seen as the better way to settle disputes by overcoming drawbacks of the conventional court system. ADR includes Mediation, Conciliation and Arbitration out of which the first one has received special consideration due to its cost effectiveness, time saving and flexible approach.

The global population is rising every second and so are the number of people knocking the doors of courts of law. The pendency of suits cannot be dealt unless the common law system is reformed.

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.[2] 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.[3] 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.[4] However, comprehensively, mediation may be defined as a voluntary process of dispute resolution where a neutral[5] third party (the mediator) with the use of effective and specialized communication and negotiation techniques[6]aids the parties in arriving at an amicable settlement.[7] It has beenderived from the Latin word 'mediare' which means 'to be in the middle.'[8] 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").[9] In India, mediation is legitimised by Section 89 of the Civil Procedure Code, 1908[10] 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 41[11] 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 India1[12] 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 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.

Advantages of mediation.
Perks of the mediation process can be discussed under the following points:
Financially effective and quicker resolution: Mediation offers an ADR mechanism for cost effective and expeditious resolution of disputes.[13] 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.

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 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.[14]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[15] because inherently the process is considered confidential. The courts have also emphasized upon the aspect of confidentiality in mediation proceedings.[16]

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[17] as the final outcome is arrived at with the consent of both the parties and leaves both the parties satisfied.[18] 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 of the dispute, if not an actual narrowing of the conflict, makes the trial proceed much more efficiently.[19]

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.[20] 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.[21] As neither of the sides lose and as there is no disagreement between them, relations between the parties are preserved.

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.[22] Hence, the mediation process provides novel broad-based solutions rather than straightforward legal adjudication.[23]

In conclusion it can be said that Mediation in India and all over is still in its premature stage. India still does not have a dedicated law enacted for Mediation and it is the need of the hour to do so. It has to be kept in mind that mediation is not meant to compete with the conventional court system but it has the job to reduce its burden and take up only the matters which can be settled outside the court. It has certain benefits which provides it an edge over litigation and Arbitration they are reduced costs, no further appeals and simple procedures etc. Alternate Dispute Resolution has a lot of scope and if exploited well, it can reduce the burden on the judiciary and promote international trade and commerce.

Alternate Dispute Resolution in Rural India: A Brief study about Panchayat system
Abstract:
Every civilization has developed its unique mechanism of dispute resolution. India since ancient times has witnessed the informal settlement of local disputes. The concept of Panchayat justice is age-old. Since primitive times panchayat system has played a major role in dispute resolution at the village level. The Panchayat model was based on resolving disputes on the basis of cultures, customs, religious beliefs and habits. The individual adjudicators were known for their partiality and sense of justice. This informal model of village dispute resolution developed into the formal local governance system. Alternate Dispute Resolution has started to share the burden of the formal judiciary and is facilitating means to face a conflicting situation and to create harmony in our society and neighborhoods. This paper deals with the "Panchayat system" as a dispute resolution mechanism in India from the ancient period to the present.

"All other pleasures and possessions pale into nothingness before service, which is rendered in a spirit of joy." – Mahatma Gandhi

Humanity since its arrival on the planet has seen conflicts and wars. Settlement of these conflicts has been an indispensable part of society. One of the ways to measure the development and successful operation of the society is to check the effectiveness of their dispute resolution mechanism. In the early part of history, most of the disputes were resolved through primitive and informal methods. These informal mechanisms gradually transformed into formal and organised methods.

The effective resolution of the disputes is considered highly important for achieving the ends of justice. It is believed that the function of law and the legal system that is in force for dispute settlement is to balance conflicting interests in the society.[24] Every society has evolved its own mechanism for dispute resolution and every method has its unique features. The societies throughout the world since long have been using indigenous non-judicial methods for conflict resolution. Most the present societies of the world practice alternate modes of dispute resolution apart from the traditional court model.

Alternate Dispute Resolution or ADR is the technique of resolution of conflicts arising between parties alternate to the formal legal methodology or the conventional court system established by the State or the Sovereign government i.e. settlement of dispute outside the court. ADR is an umbrella term which includes all legally permitted processes of dispute resolution other than litigation.[25] This is the aggregate term for all the methods used by the parties to resolve conflicts without bringing the matter into the formal structure of judiciary in the country.

What is new is the extensive promotion and proliferation of ADR models, wider use of court-connected ADR, and the increasing use of ADR as a tool to realize goals broader than the settlement of specific disputes.[26]Also in India, the concept is prevalent 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.[27] The Judicial settlement of disputes though is the most popular method of dispute settlement in modern era suffers several drawbacks due to its formality.[28]The conventional court system has suffered from several drawbacks these are rigid procedural delays, excessive costs and unnecessary appeals etc. Due to these drawbacks, the sovereign who administers justice through judiciary had to think of alternate modes of dispute resolution in a modern era and ADR emerged as an effective solution.

The Alternate Dispute solution is a collective term for techniques like Mediation, Conciliation and Arbitration etc. Out of these techniques, Mediation has got special importance in the current era. It's a method that usually involves a neutral third party, that is, a skilled helper who either assists the parties of a dispute to reach at a decision by agreement or facilitates in arriving at a solution to the problem between the parties to the dispute.[29] Mediation in its plain and simple meaning is nothing but facilitated negotiation[30]. However, comprehensively, mediation may be defined as a voluntary process of dispute resolution where a neutral[31] third party (the mediator) with the use of effective and specialized communication and negotiation techniques[32]aids the parties in arriving at an amicable settlement.[33] It has been derived from the Latin word 'mediare' which means 'to be in the middle.'[34] Mediation is both cost and time-effective. The current trends all over the world suggest that the process of Mediation is gaining more and more popularity as a dispute settlement mechanism to the extent that even the judicial organs are encouraging it.[35]

All the communities and societies have their home-grown method of resolving disputes of their constituents, it is also observed that the dispute solving process is varied and refined if the history of the society is long and prosperous. India has a golden past with certain scars of colonisation, It is a land of many cultures and hence has several dispute resolution mechanisms had emerged and been customised over time. Communities in India did not consider law as a set of rules, but as a moral one or Dharma[36]. In Indian tradition, dharma is not a body of rules practised for its own sake. Dharma has a definite end and is a comprehensive concept. When it is used in the sense of obligation, its purpose is to keep everybody within his assigned role, prescribed by the dharmasastras[37]. The visible end is to maintain the status quo in the society and the ultimate end lies in providing to each one in the society an opportunity to realise his ultimate goal of human existence[38]. Since ancient times the informal resolution of local disputes has been seen throughout the country, but we could not see homogeneity in the methods used for doing so. Mediation as a mode of resolving problems has been very popular in India since time immemorial. Before the formation of Law Courts, people used to resolve their differences themselves through mediation. Mediation was used to solve not only personal problems of both civil and criminal nature but political problems between different kingdoms also.

The epics like Mahabharata and Ramayana in ancient India, as well as the ancient texts and formal socio-legal sources governing the conduct of people in ancient India, bears a very strong testimony of the presence of this technique for dispute resolution[39] .Gandhi famously said "India lives in its villages"[40], Bapu always wanted self-rule i.e. people should govern themselves and he had saw immense potential in the nations villages. He also used to refer the rural India as the the real India. India is the world's second largest nation, as well as its largest democracy, and there is evidence that its citizens rely heavily upon mediation to resolve their disputes[41].The people who used to mediate the disputes were learned in social, legal, moral and religious principles. These wise men used to have high regard in the society and they held these positions for the welfare of the people, they were neutral and impartial which enabled them to find a solution which was mutually acceptable and beneficial for both the parties. The justice delivery system in ancient India was not separated from the executive, which enhanced the importance of these mediators in conflict management and its resolution. The permanent system for mediation was established which was referred as 'Panchayat' in the villages of ancient India.[42]

The dispute resolution system now known as mediation was normally held by a person of high respect and status among the villagers and such mediation was commonly known as "Panchayat" in olden days. According to Colebrooke, an English scholar and commentator on ancient Hindu law, Panchayats were different systems of arbitration subordinate to the regular courts of law.[43] The town headmen with the council comprising of other distinguished individuals used to function as mediators. The individuals were known as "panchas" and were known for their integrity, quality, character and impartiality, they were headed by the "Sarpanch". When a dispute was submitted to the panchayat, the members along with the parties used to discuss and deliberate and arrive on the settlement which was accepted by both the parties in the dispute and only those disputes where no settlement could reach upon were alluded to the judicial experts for the final decision. Disputes in the early past rarely used to reach law courts. The panchayat used to resolve even complex criminal, civil and personal law matters. The matters were resolved keeping in mind the local conditions, language, habits, customs and practices. In words of Martin, C.J., "arbitration was indeed a striking feature of ordinary Indian life and it prevailed in all ranks of life to a much greater extent than was the case of England. To refer matters to a Panch was one of the natural ways of deciding many disputes in India"[44]. The Panchayat were mainly of two types these were, "Caste panchayat" and "Village panchayat". The Village panchayat mainly performed regulatory functions and also used to deal with civil disputes of villagers relating to land and administering criminal justice. The matters of marriage, rituals and jajmani were dealt by Caste panchayat. In medieval times the panchayat system had to face the blows and scars of foreign rule especially the Mughals but still, the people preferred the indigenous method of dispute settlement over the foreign origin judicial system.

The major transformation to the Indian legal system came during the British rule in India. In the medieval times the law was based on religious sources and on practices and customs. The codified statutory laws were written in the English language and administered by the British officers. The foreign legal framework was unknown and difficult for the Indians. The English law was not based on Indian customs, practices and rituals. The British officers were well versed with the English law but had a tough time acquainting themselves with the indigenous legal system and this became a blessing in disguise for the Panchayat system. The traditional institutions worked as recognized system of administration of justice and not merely alternatives to the formal justice system established by the British. The two systems continued to operate parallel to each other.[45] Gandhi, the champion of the Indian Freedom Struggle, the great jurist and ardent supporter of non-violence and peace and father of the Indian Nation had a very strong belief and faith in the Panchayat system as the dispute settlement mechanism[46]. He believed that majority of the Indians resided in villages and panchayat was the only way of effective dispute resolution because the English judicial system was not easily accessible. ADR was not only an alternate convenient procedure but was considered a politically safe and significant mechanism of dispute resolution at that time. However, with the advent of the British Raj these traditional institutions of dispute resolution somehow started withering and the formal legal system introduced by the British began to rule[47]. The legislations such as the Indian Penal Code and Code of Criminal Code took over the panchayats to establish rule of law. The Panchayat system had a major setback when respected and neutral village elders were replaced by leaders based on caste, money and political affiliations who gave decisions based on superstitions, personal interests and moral beliefs. The punishments imposed by them were of ugly nature such as ex-communication and honor killing etc. As a result the indigenous dispute resolving mechanism slowly lost its respect and confidence and the Courts replaced them as the adjudicators of disputes. Gandhiji accepted the British legal system but believed that the panchayat system should be developed more and should run parallel to the adversarial court system.

The Constituent assembly in India discussed heavily upon the issue of panchayats. Many lawmakers argued that the panchayat model of dispute resolution was Gandhi's dream and thus it deserved a place in the Constitution of India. It was for this reason that some provisions in this regard were incorporated in the Constitution of India and it was made obligatory to some extent for the government in India to take measures in this regard.[48] Therefore we have Article 40 of our Constitution which says "The State shall take steps to organise village Panchayats and endow them with such powers and authority as may be necessary to enable them to function as units of self-government."[49] Unfortunately in the early part of the historical backdrop of independent India, not much attention was paid to the development of the panchayat system as the main focus of the state was to make the court system more solid and accessible to the poor Indians. The significance of Judiciary was emphasized to the degree that it rose as the chief dispute settlement system in India. As every case filed had to go through rigid codes and procedure of the adversarial court system, it led to piling of cases in the courts. The English made system of law had strict procedures for example Code of Civil Procedure, Criminal Code and Indian Evidence Act which affected the justice delivery in terms of quality and time. The burdening of judiciary started from the time when the English East India Company started to shift from the Mughal system of Justice to their English Court system. This burdening accelerated after independence as more and more people became educated and empowered. This led the State in search for alternate modes of dispute settlement thus the importance of panchayat was again realized by the government. The then government formed the Balwantrai Mehta Committee in 1957 which recommended a three-tier Panchayati Raj System in the form of Gram Panchayats, Panchayat Samiti and Zilla Parishad in village, block and district level respectively. Certain states took spirited measures to implement the recommendations while others turned a blind eye. The turn of the 21st century saw Globalisation and Privatisation throughout the planet. Due to improvements in transport and communication, more and more people started doing business across the borders. The increasing cross border disputes are considered responsible for international growth and advancement of Mediation and Arbitration as a conflict resolution mechanism.

As all the countries had their own set of laws it created a problem of conflict of laws. Mediation at that point provided a solution wherein without reference to law of any one nation the disputes could be resolved amicably. This inherent benefit of Mediation led to its international acceptance which resulted into generation of vast legal jurisprudence on it. Many legal scholars expect India to be the Mediation hub of the world. The laws governing ADR in India till 1996 were mostly pre-independent and were incompetent to address the emerging concerns[50]. All those laws were repealed by the law that came into force in the year 1996 to govern and regulate the process of Arbitration, Conciliation and Mediation in India. The Arbitration and Conciliation Act, 1996 is the law that today regulates the process of Mediation in India along with Arbitration and Conciliation. The Mediation is also governed by the Civil Procedure Code to some extent.[51] The Mediation as per Supreme Court of India is a non-adjudicatory process that is aimed at amicable settlement of disputes between the parties via Mediator.[52] The Supreme Court of India has launched special training programmes for specialized training of mediators. After completion of the program, the mediators become highly efficient in handling the mediation sessions. The organisations such as Indian Institution of Mediation and Delhi Mediation Centre have proved very benevolent in promoting mediation in India. Legal Services Authorities are statutory bodies constituted in the states of India by the Legal Services Authorities Act 1987, as enshrined by article 39-A of the Constitution of India, for providing free legal services for the citizens[53] [54]. If the person is incapable of bearing the expenses the authorities give free legal aid to them. Almost all the states in India have their own legal services authority which is the principal body dealing in the matters of Mediation, Conciliation and Lok Adalat.

Panchayat system in India has lost its past sheen, but it still exists for some executive purposes and has not completely vanished. In the recent past, the government has taken several steps to encourage mediation. In 1992 the Rajiv Gandhi government passed the 73rd Constitutional Amendment[55] to mandatorily establish the three-tier Panchayat system in every district with an attempt to revive the indigenous Panchayat system. To revive the judicial function of the panchayats the government has taken several steps in this direction. These involve the formation of small panels at the village, block and district level which will resolve local matters with the assistance of the police and other authorities and the results are surprisingly well. Especially in states like Maharashtra and Madhya Pradesh this model is doing wonders. The experience of Maharashtra State in this regard is very encouraging and emphasizes the importance of techniques like mediation in dispute settlement[56]. The success of this experiment is reaffirming the belief of people in the home-grown Panchayat system.

Taking everything into account it very well may be said that the historically tested Panchayat system can come to rescue the overburdened judiciary by providing simple, practical and cost effective settlement of disputes in India. The Panchayat system has proven very effective in the past and since ages, it is performing an exceptional role in conflict resolution. The skills and expertise of the Mediators i.e. the "Sarpanch" and the "panchas" must be channelized in successful dispute resolution. It is important to guarantee that the Panchayats all over India are set up in a way that encourages execution of this job of Mediation. The government should ensure that the panchayats all over India are provided with the proper infrastructure to facilitate dispute resolution. Proper workshops and training sessions should be compulsorily provided to the Village headman and his council to polish their skills as adjudicators and mediators to conduct sessions. There is also a need to educate the commons about the perks of this mechanism to discourage them from unnecessarily knocking the doors of law courts. Proper incentives and awareness should be given to the people to settle their dispute via mediation. The Panchayats who have successfully adopted the said model should be appreciated by the authorities for the same. As majority of the population of India stays in villages this model will be of great importance in providing a very impelling alternative for dispute settlement.

The type of mediator one needs as well as deserve-Attributes of a good mediator
Defining Mediation is very challenging, but if we are to define it, the aptest word would be to consider it to be a mode of conciliation that has had a long history and as of late has increased as a method of legal reconciliation. The reason for this being that mediation is a system that poses many attractive advantages, namely, proving each party with full control over the procedural method of the session as well as allowing each party to have autonomy over the outcome over their session.[57] The word 'mediation' is derived from the Latin term 'mediare' which means to be in middle.[58]The basic principles of mediation are Confidentiality; Willingness; Legality; Inexpensiveness etc.[59]

In the mediation proceedings, a mediator is a neutral third party[60] which uses effective and specialized communication and negotiation techniques[61] and thus aids the parties in arriving at an amicable settlement.[62] Choosing the right mediator is extremely important to the success of the mediation, there are certain characteristics a good mediator possesses or has trained themselves to actively engage in techniques that can assist clients in settling the dispute. These various types of mediator styles then give parties the chance to choose which may be more suitable towards their own particular needs and wants.

Here we would be listing certain traits every mediator must inculcate during the process of mediation. These are-

Confidentiality:
'Confidentiality' in layman terms means the state of keeping or being kept secret or private. In mediation, it takes has a slightly different meaning, it means that the adjudicator or mediator will not disclose anything discussed before, during or after the mediation process to any other person except the people who were a part of the process and that too if necessary.[63] He is obligated to destroy all the drafting and notes made during the session and can disclose it to the opposite party or any third party only if it is expressly permitted by the concerned party. It is one of the most vital attributes which makes mediation very attractive to people.

In commercial matters, the parties generally do not wish to wash dirty linen in public and aim to resolve the dispute without the media or their competitors getting knowledge of it, mediation provides them with the best platform for dispute resolution, as here, the mediator will keep all the facts and delicate information to himself. It has been observed in many instances that famous business houses have resolved very critical issues through Alternate Dispute Resolution mechanisms without the public and media getting a wind of it. In family feuds, if the matter goes to the formal court, then the situation becomes such that both the parties throw sludge on each other to such an extent that reconciliation becomes next to impossible, mediation provides an out and out solution to it. Mediation has a provision for caucus or private talks, in this, the parties can put forward their views and the mediator presents one party's view to the opposite party only if necessary and that too in a dignified and acceptable form. A mediator is required to make an unwritten pledge that he/she would maintain utmost confidentiality at all times.[64]

Be a good listener - In court, the advocate becomes a mouthpiece of the litigants. Mediation, unlike litigation, provides a platform to the parties to speak up. The parties, especially in family matters, come to the mediation sessions with a lot of emotional baggage. They look upon the mediator as a fetish who would help them unload this baggage by listening and solving their problems. Many people are of the opinion that good communication skills are synonymous to good speaking skills but there is also another side to it which is to be a good listener. In fact, since we have two ears and only one mouth, listening just might be the more important skill.[65] The parties during the session may disclose certain crucial information and thus it makes it very important for the mediator to be a good auditor. Half of the battle is won if the mediator is a good listener.[66]

Legal Knowledge – In India, Mediation has a history as old as the Rig Veda and earlier it existed in the form of Panchayat system.[67] This particular trait of command of legal knowledge is not necessary for community-mediation but for court assisted and institutional mediation this becomes mandatory. It is a well-established fact that a mediator is having the freedom to choose the procedure that is to be involved during the proceedings, but it should be kept in mind that the procedure adopted should be based on the principles of natural justice and not against the public policy. It is preferable that the mediator is having a law-related background for example, he/she should be a lawyer or an ex-judge. The mediator is expected to have the basic knowledge about subjects of law such as Contract Law, Personal Laws and Property Laws etc. The settlements made among the parties should be such that they would not fall apart once they are tested on the touchstone of law.[68]In India, Mediation Rules, 2003 [69]have laid down a set of compulsory rules that are to be followed by the court-appointed mediators present across the nation.

Promptness and timeliness – Everyone is aware of the 'tareek pe tareek' culture in India, the main reason for the formulation of alternate modes of dispute settlement was that the Courts in India are becoming sluggish and slack with every passing day. Cases go on for years and years, in many cases, it was found that the litigant had passed away before the final judgement of the case. The mediation process, unlike the conventional courts, generally have a pre-planned schedule.[70] The mediator in consultation with the parties prepares and schedule slots for the parties as per their time and convenience. A good mediator should try and make sure that time is not wasted in unnecessary and malicious delays, but he should also know when it is imperative to take adjournments. Sometimes it becomes essential to give adjournments, so as to give the parties a proper chance to make strategies, consult the elders and to bring down their emotional quotient.[71]A mediator is expected to know what is foremost for their clients and should always act in the best interest of the parties. At times, the parties may opt for mediation just to delay the matter and waste the time, a mediator should be able to speculate and judge these ballgames and accordingly respond to it.

Professionalism – According to the Cambridge Dictionary[72], 'professionalism' means the combination of all the qualities that are connected with trained and skilled people. In a similar vein, the mediators are required and expected to act like professionals. This starts with dolling up in professional attire. The clients should be in the impression that they are sitting in an actual court where the only thing going on is business.[73] There is a hair-line difference between the expected professionalism in a court and a mediation session and the person who gets this matures into an excellent mediator. Alternatively, overdressing might turn into a disaster, as on many occasions, the parties might not be from a very opulent background and thus overdressing might ruin the confidence of the parties.[74] Also, professionalism should not be confused to using technical and legal jargons, the mediator should use the terminology and vocabulary which the parties can apprehend and comprehend, for example, if the parties in the case are not comfortable in communication in English language and even after this the mediator is still using it thinking that it might look unprofessional will be a massive faux pas. Another important aspect of professionalism is giving credit. A mediator should always make sure that due credit is given to all the people who have assisted the parties during the mediation session.[75]

In conclusion, we can say that at the end of the day, even mediators are human beings and thus possessing all these traits are not practically possible but still, every person in this business should try to infuse these characteristics to be able to give their best. Different contexts require the conscious use of different personal qualities for the best services available in the interest of the users.[76] Also, every dispute is idiosyncratic and we cannot evolve a straight-jacket formula of how to react in a particular situation, but the best thing to do is to provide the mediators with proper instruction and training. Mediation has a lot of scope in India and we have a gold mine of the best mediators in the world and in the future, we can be a Mediation Hub for the world.

Process of Arbitration in India: A beginner's guide
Abstract:
The Indian judiciary is plagued with a plethora of cases on a day-to-day basis, and this institution is forced to deal with these avalanches of lawsuits. The judicial wing is oftentimes said to be inefficient and slow in its approach. Since the inception of trade practices, it could be observed that when two people decided to trade or enter into a transaction with each other, there would always be a possibility that some form of misunderstanding would creep in. With evolved times and with an evolved legal system, the legal mechanisms were viewed as a medium through which conflicts could be resolved. However, litigation was seen as one of the only means of settling out disputes, arising out of complex backgrounds. Nonetheless, other resolution mechanisms have been arising to effectively resolve disputes. Arbitration is even viewed as the most common forms of alternatives to litigation. It has time and again been hailed as more effective and less time consuming than the formal litigation. Arbitration has seemed to have opened the doors for other forms of justice systems. Arbitration is also less rigid as opposed to the traditional litigation system. The aim of this paper, hence, would be to analyze the procedures involved during the process of arbitration.

A layman may be tormented and ambushed at the thought of experiencing the convoluted and cumbersome rules and procedures of the customary and old fashioned mechanism of litigation. The judiciary in India since time immemorial is been accused of excessive red- tapism. India since Independence has witnessed various reforms in the judicial sector but it is still plagued with several problems. Owing to these endless grievances, new and better forms of dispute resolution are coming to the rescue. All the civil disputes can be settled at any of the following two forums i.e. Courts and Tribunals, or Alternate Dispute Resolution (ADR), it is inclusive of all the mechanisms which assist outside court settlement these include includes Mediation, Conciliation, and Arbitration. Looking at the condition of the formal mode of settlement, it will be alluring to choose ADR for its various benefits such as Cost effectiveness, No appeals and Timely results. The concept of Alternative Dispute Resolution (ADR) emerged in the Indian context in the late 1990s to deal with the avalanche and the barrage of cases that were cropping up. India now has a dedicated law on ADR for Example the Arbitration and Conciliation Act, 1996 which is on similar lines with the model law on International Commercial Arbitration in 1985 by the United Nations Commission on International Trade Law [77](UNCITRAL). These model rules are committed to effective and productive resolution of International disputes. The Indian law on Arbitration i.e. The Arbitration and Conciliation Act 1996 is focused on mediation, creation of grants, creation of courts, technique for intervention, response against arbitral awards, conclusion of arbitral honors and their implementation, requirement of outside honors and so forth. The aim of this paper, hence, would be to analyze the procedures involved during the process of arbitration.

Arbitration in India is opted when conflict arises between two parties, who are bound by a legally valid contract. The precondition of Arbitration is that the parties have an Arbitration Agreement, which highlights and signifies the assent of the parties to undergo arbitration proceedings to resolve any conflict that might arise. The mechanism of arbitration, in India, is governed by the Arbitration and Conciliation Act of 1996.[78]The aforementioned Act is said to have found its base predominantly on the UNCITRAL Model Law. The Arbitration process starts with the drafting of the arbitration agreement specifying that if a dispute arises the parties would opt for arbitration for dispute resolution. Alternatively, a special contract can signed between the parties. That is, this declaration could be made even in the form of a clause, instead of drafting a new contract altogether. When a dispute arises, the Non - defaulting party can send a notice to the defaulter and this marks the beginning of the arbitration proceedings. Once the invocation of the arbitration has been completed, the two parties to the arbitration proceedings would undertake in the activity of appointing arbitrators according to the procedure established by the arbitration agreement. It means that the parties to the dispute have a free will to decide on the number of arbitrators they would want. But the number should not be an odd one. In case they fail to appoint arbitrators, only a single arbitrator would be appointed to conclude the proceedings. The section 11 of the Arbitration and Conciliation Act of 1996[79] empowers the parties to appoint arbitrators with court's assistance.

The court's assistance is provided so as to expedite the whole process of appointing arbitrators and to avoid any inadvertent delays that are commonplace in the conventional forms of litigation. After the invocation of the arbitration is complete, the party who is resorting to the said proceedings is mandated to file a statement of claims, which contains a statement of facts, which briefly explain the contention at hand. Moreover, the statement of claims also contains the relief that the party would like to receive due to the breach or the non-performance of the contractual obligations of the defaulter. It is interesting to note that the statement of claims could be amended at any time during the proceedings, unless agreed otherwise by the parties of the arbitration. The statement of claims, so filed, must be sent to the defaulter. In response to the statement of claims, the defaulter files a statement of defence, wherein, he/she refutes the claims made by the applicant or the invoker of the arbitral proceedings. This is done with sufficient evidence to prove the refutations. The arbitral tribunal then hears out each party and scrutinises evidence provided in their favour closely. After sufficient deliberation, the arbitral tribunal passes an Award, which is essentially the decision arrived at by the tribunal. This 'Award' is often seen as analogous to a judgement passed by the courts of law. Once the Award has been passed, the party, in whose favour the award has been passed, has to ensure that he/she files an enforcement order so as to make certain that the Award pronounced is being implemented sufficiently. This is done with the help of a good arbitration lawyer.

The Section 34 of the Arbitration and Conciliation Act of 1996[80] lays out various grounds on which an Award that was pronounced could be set aside. The sub section 3 of the section 34 of the Arbitration and Conciliation Act of 1996[81] lays down these grounds. For instance, an Award could be set aside in case the party that is making an application for invalidating an Award if the said party could prove that either party, who was subjected to the arbitral proceedings was incapable of being a party to the said proceedings. That is the person who was subjected to the proceedings was mentally incapable of being a party to such arbitral proceedings. Another ground for the invalidation of an arbitral Award could be on the ground that the arbitration agreement, in itself is invalid. That is, the DE legitimization of the arbitration agreement, in itself, renders the Award pronounced to be void. Furthermore, another ground for the setting aside of an arbitral Award, could be on the ground that the party making the said application for the rejection of Award, was not given a proper notice about the commencement of arbitral proceedings. Additionally, the party making such application could also prove that he/she had not received a proper intimation about the appointment of an arbitrator. Furthermore, the party making the said application could also prove that he/she was not able to make his/her case, owing to the miscommunication, thereby, going against the principles of natural justice. Moreover, an Award, so pronounced, could be set aside if it could be proved that the dispute that was resolved, through the means of arbitration was beyond the scope of the arbitration agreement. That is, the dispute does not fall within the terms laid out in the terms of the arbitration agreement.

In case there is a part of the decision that does not fall within the ambit of the arbitration agreement, only that part of the decision would be struck down; the remaining decision would be implemented with full effect. Another major factor that could invalidate an Award pronounced could be that the composition of the arbitral tribunal was not according to the one stipulated by the arbitral contract. Additionally, the arbitral proceedings not being in accordance with the procedure established in the arbitration agreement. In such instances, the Award, so pronounced would be set aside. On top of that, the arbitral Award pronounced could also be struck down by the Courts on various grounds. For instance, an arbitral Award could be abrogated in case the subject matter of the contention of the arbitral proceedings at that point of time was incapable of being settled by the law. Moreover, the courts of law could declare an Award, so pronounced as null and void if the decision is in the contravention of public policy of India. To elaborate, the decision or the Award pronounced was in contravention with the principle of equity. That is, the decision was brought forth on the grounds of corruption or any other means of misfeasance.

The courts may also adjourn proceedings in case the party challenges the arbitral proceedings. The term 'public policy' had been interpreted along similar lines in the case of Renusagar Power Co. Ltd v. General Electric Co,[82] it was held that public policy in cases of Arbitration was anything that was not against the fundamental policy of India, and something that is not against the principles of morality. It is interesting to note that the constitutional validity of the Section 34 was challenged in the case of TPI vs Union of India wherein, the petitioner of the case had asserted and maintained that an arbitral award, must be subjected to challenge and if this provision for challenging were not provided, the Section 34 would be constitutionally invalid. However, the Court held that the subject matter was not within their scope for judicial review.

The subsection 3 of the section 34 of the Arbitration and Conciliation Act of 1996[83] lays down a limitation period, beyond with a party cannot challenge the arbitral Award, laid down, according to the Section 31 of the Arbitration and Conciliation Act of 1996.[84] That is, the application for the setting aside of the arbitral Award cannot be made after three months of the actual pronouncement of the award. However, if the court is convinced that the party could not have made the application for challenging the award within the three months' limitation period due to legitimate reasons, it may take into consideration an application of challenge even after the lapse of the 3-month limitation period. That is the court could extend the limitation period by 30 days if it is convinced that the party had a valid, legitimate reason for not being able to make an application within the 3-month limitation period. Moreover, in case the limitation period, under the Section 34(3)[85] has expired, the party could enforce the same through the Code of Civil Procedure of 19081.[86] Moreover, the Section 43 of the Arbitration and Conciliation Act of 1996[87] mentions that the Limitations Act of 1963[88] would be applicable for the instances of arbitration also, in the same way as it would be applicable for ordinary cases in a court of law.

A superficial reading of the Arbitration and Conciliation Act of 1996[89] would enable us to reach a conclusion that the limitation period would commence on the mere delivery of the Award, which would be called a receipt, upon the said delivery. However, the Supreme Court held that the delivery has to be effective in order for it to be known as a receipt. As mentioned in the Act, the limitation period starts upon the receiving of the receipt. It has been made exceedingly clear that the civil proceedings that would arise out of the Limitations Act of 1963, would also commence in the presence of an arbitrator. It has been repeatedly iterated by many that the limitations, as available for the ordinary courts of law, must also be applicable for arbitral proceedings, for the sake of the principles of equity and for the furtherance of the principles of justice and fairness.[90] Moreover, it has been iterated that since the Limitation Act of 1963 has laid out the limitation period for claiming actions under disputes that arise out of contract to be three years, anything in the arbitration agreement that is in contravention must be implied to be void to that extent. However, since the Arbitration and Conciliation Act of 1996,[91] is a special Act, certain limitation clauses within the Act could have the overriding effect on the original limitation periods, as stipulated by the Limitation Act of 1963.[92]

The lack of partiality and any forms of predispositions among the arbitrators is very essential to the process of arbitration to be carried. In fact, this standard against bias is essential in all judicial and quasi-judicial proceedings. However, this is most pertinent in arbitral proceedings because the arbitrators are appointed according to the contract written by the parties to the proceedings. That is, the arbitrators are appointed as per the discretion of the parties to the arbitration themselves. This could point to the fact that some form of predilections could inadvertently creep in. Hence, it must be ensured that the arbitrators, so appointed do not look into the individual interests of the parties and instead take into consideration the case at hand with no external influences whatsoever. That is, the arbitrators are to raise above the pre-existing relations that they might have with the parties involved. However, it should be pointed out that the Arbitration and Conciliation Act of 1966, does not lay down any said guidelines to ensure that there are no such biases. To tackle these issues, there was an amendment to the aforementioned act in the year 2015, which attempted to introduce a few guidelines to ensure that the arbitration proceedings were not commenced on the basis of malfeasance. This amendment further attempted to facilitate the principles of natural justice and upholding the fairness in the arbitral proceedings.

For instance, the amendment to the Act had now added a provision to the Section 12(1) of the Arbitration and Conciliation Act[93] of 1996, which mandates the arbitrator, so appointed to disclose the relationship that he shares with the party of the arbitral proceedings. The past relationship held, will then be subject to a lot of scrutiny, to ensure that the relationship, so held shared by the arbitrator and the party would not influence and deviate the due course of the arbitral proceedings. The new amendment to the said Act also saw the inception of a new provision. This new provision was inserted within a new section, the Section 12(5) of the Amendment Act. This section goes into depths and specifies the various grounds and conditions, which would render an arbitrator to be ineligible and incompetent to be an arbitrator of the arbitral proceedings. Additionally, it is pressing to note that the Section 15 of the Amended Act empowers the parties of the arbitration to appoint a new arbitrator, in case the previous arbitrator was disqualified on the grounds of unfairness. The Arbitration and Conciliation Act, 2015, s. 15.

To conclude, arbitration, a mechanism under the umbrella of Alternative Dispute Resolution (ADR) has proved to be very effective in its approach. It has time and again proved to be a very effective means to the resolution of any conflicts or disputes that arise among two or more parties. Arbitration has also proved to be very flexible and fluid in nature. This is owing to the nature of the procedures. That is, the procedures involved are very simplified and easy to understand even by a layperson. Arbitration is also said to be a very convenient means of resolving conflicts because the proceedings arranged are done so according to the comfort of the parties. Even though Arbitration has proved to be very efficient and cost-effective in resolving conflicts, there are certain demerits and challenges that one might face when he/she might choose arbitration as a means to conflict resolution.

For instance, arbitration does not follow fixed standards during the arbitral proceedings. These inconsistencies could arrive when the arbitrator, so appointed is biased. Another major drawback of this mechanism is that the process involves only an exchange of documents. That is, the mechanism has no room for witnesses. This in turn gives rise to a lack of scope for cross-examination, which might prove to be fruitful in settling these proceedings in a more efficient manner. Yet another considerable concern with regard to the arbitral proceedings is that there is a strict clause in the Arbitration and Conciliation Act of 1996,[94] which seeks to maintain a sense of confidentiality of the proceedings that take place. This lack of transparency and closeness, might prove to be disadvantageous to a party of the proceedings henceforth, it could be contended that the system of Arbitration has a long way to go.

End-Notes:
[1] *
[2] Bryan A. Garner ,Black's Law Dictionary (9th edn.).
[3] Dr. Shraddhakara Supakar, Law of Procedure and Justice in Ancient India, Deep & Deep Publication, New Delhi, 1986.
[4] See Tom Arnold, Mediation Outline: A Practical How-to Guide for Mediators and Attorneys in P.C. Rao and William Sheffield (Eds.), Alternative Dispute Resolution 210(Universal Law Publishing Company Pvt ltd., Delhi, 1997);See also Stephen B Goldberg, Frank E.A. Sander, Nancy H. Rogers & S.R. Cole, Dispute Resolution: Negotiation, Mediation and other Processes (Aspen Law & Business, New York, 3rd Edn.).
[5] Neutrality of the mediator is considered a necessary condition not only for conducting proper mediation but also for the very existence of the process called mediation. See Ronit Zamir, The Disempowering Relationship between Mediator Neutrality and Judicial Impartiality: Toward a New Mediation Ethic, 11 Pepperdine Disp. Res. L. J. 467(2011); Non-neutral mediator, therefore, is an oxymoron. See Christine E. Harrington & Sally Engle Merry, Ideological Production: The Making of Community Mediation, 22 Law and Soc'y Rev. 709 (1988).
[6] See Joanne Goss, An Introduction to Alternative Dispute Resolution, 34 (1) Alta. L. Rev. 1 (1995) (Can.).
[7] Black's Law Dictionary defines Mediation as a method of non-binding dispute resolution involving a neutral third party who tries to help the disputing parties to reach a mutually agreeable solution. See Bryan A. Garner
[8] See Law Reform Commission, Ireland, Report on Alternative Dispute Resolution: Mediation and Conciliation, LRC 98-2010, November 2010, available at: http://www.lawreform.ie (last visited on 10.04.2010);
[9] Available at https://uncitral.un.org/en/texts/mediation/conventions/international_settlement_agreements (last accessed 6th Dec, 2019).
[10] Civil Procedure Code, 1908,§89
[11] Industrial Disputes Act,1947,§4
[12] Writ petition 496 of 2002.
[13] In fact, the driving force for participants in mediation is achievement of a fair result as quickly and inexpensively as possible. See James Melamed, A View of Mediation in the Future, 1(8) the Indian Arbitrator 6 (September2009).
[14] Ashwanie Kumar Bansal, Arbitration and ADR 19 (Universal Law Publishing Co. Pvt. Ltd., Delhi, 2005
[15] There is no statutory provision like s. 75, Arbitration and Conciliation Act, 1996 which affords confidentiality in mediation as a statutory guarantee.
[16] In Moti Ram v. Ashok Kumar, (2011) 1 SCC 466, a case of Court referred mediation, the Supreme Court observed ...if the mediation is unsuccessful, then the mediator should only write one sentence in his report and send it to the Court stating that the 'Mediation has been unsuccessful'. Beyond that, the mediator should not write anything which was discussed, proposed or done during the mediation proceedings. This is because in mediation, very often, offers, counter offers and proposals are made by the parties but until and unless the parties reach to an agreement signed by them, it will not amount to any concluded contract. If the happenings in the mediation proceedings are disclosed, it will destroy the confidentiality of the mediation process.
[17] William Sheffield, Disputes among Business Partners should be Mediated or Arbitrated, not Litigated, in P.C. Rao and William Sheffield (Eds.), Alternative Dispute Resolution 288 (Universal Law Publishing Company Pvt. Ltd., Delhi,1997)
[18] In fact, party-acceptability of outcomes is, and should be, the defining feature of justice in mediation and in this context the process of mediation serves as an instrument for securing justice. See Joseph B. Stulberg, Mediation and Justice: What standards Govern? 6 Cardozo J. Conflict Resol. 213 (2005); Mediation presents the opportunity to express differences and improve relationships and mutual understanding, whether or not an agreement is reached. See Anil Xavier, Mediation is here to Stay, 2 (3) The Indian Arbitrator 2 (March 2010
[19] Kuljit Kaur, Mediation: As a Technique for Alternative Dispute Resolution System, Nyaya Kiran 19 (D.L.S.A., April–June, 2008)
[20] The Delhi Mediation Centre, Annual Report (2006-2007)
[21] R.V. Raveendran, Mediation - Its Importance and Relevance, (2010) PL October 10.
[22] Elizabeth Plapinger & Donna Stienstra, ADR and Settlement in the Federal District Courts: A Sourcebook for Judges and Lawyers available at: http://www.fjc.gov (last visited on 01.04.2012).
[23] Ibid
[24] The Sociological school of jurisprudence of which Roscoe Pound is the ardent philosopher firmly believes in this functional approach to the law and legal system. He calls it 'Social Engineering'. Fitzgerald, Salmond on Jurisprudence, p.n.9.
[25] Bryan A. Garner, Black's Law Dictionary (9th edition.).
[26] Alternative Dispute Resolution, Practitioners' Guide, Centre for Democracy and Governance, Washington, 1998
[27] Dr. Shraddhakara Supakar, Law of Procedure and Justice in Ancient India, Deep & Deep Publication, New Delhi,1986.
[28] The difficulties include, satisfaction of any one party involved in the dispute which sometimes is not fair, heavy consumption of time and the costs, technicality, etc.
[29] See Maneesh Chhibber, 'Do we need moreion judges? CJI Thakur's plea to the govt raises key question'.
[30] See Tom Arnold, Mediation Outline: A Practical How-to Guide for Mediators and Attorneys in P.C. Rao and William Sheffield (Eds.), Alternative Dispute Resolution 210(Universal Law Publishing Company Pvt ltd., Delhi, 1997);See also Stephen B Goldberg, Frank E.A. Sander, Nancy H. Rogers & S.R. Cole, Dispute Resolution:
Negotiation, Mediation and other Processes (Aspen Law & Business, New York, 3rd Edn.).
[31] Neutrality of the mediator is considered a necessary condition not only for conducting proper mediation but also for the very existence of the process called mediation. See Ronit Zamir, The Disempowering Relationship between Mediator Neutrality and Judicial Impartiality: Toward a New Mediation Ethic, 11 Pepperdine Disp. Res. L. J. 467(2011); Non-neutral mediator, therefore, is an oxymoron. See Christine E. Harrington & Sally Engle Merry, Ideological Production: The Making of Community Mediation, 22 Law and Soc'y Rev. 709 (1988).
[32] See Joanne Goss, An Introduction to Alternative Dispute Resolution, 34 (1) Alta. L. Rev. 1 (1995) (Can.).
[33] Black's Law Dictionary defines Mediation as a method of non-binding dispute resolution involving a neutral third party who tries to help the disputing parties to reach a mutually agreeable solution. See Bryan A. Garner (Ed.), Black's Law Dictionary 1003 (West Publishing Company, St. Paul, Minnesota, 8th Edn., 2004); Mediation is therefore a facilitative process in which disputing parties engage the assistance of an impartial third party, the mediator, who helps them to try to arrive at an agreed resolution of their dispute. See Henry J. Brown and Arthur L. Mariot, ADR Principles and Practice (Sweet & Maxwell, London, 2nd Edn., 1997).
[34] See Law Reform Commission, Ireland, Report on Alternative Dispute Resolution: Mediation and Conciliation,
LRC 98-2010, November 2010, available at: http://www.lawreform.ie (last visited on 10.04.2010);
[35] The Supreme Court of India has constituted a permanent committee of the judges to address the matters concerning mediation and is mandated to encourage and develop mediation as a dispute settlement mechanism. http://supremecourtofindia.nic.in/committees.htm
[36] DISPUTE RESOLUTION IN RURAL INDIA: AN OVERVIEW,Written by Dr. Laju P. Thomas, St Mary's ,Thiruvananthapuram, pp 97-98
[37] Ibid
[38] Ibid
[39] Law Beacon, Peer-reviewed, Bi-annual Journal Published by Akola Law College, Vol.1 ISBN 978-81-930238-0-8, pp 92-96
[40]Garg BS. Village First Community Empowerment on Health & Development Based on Gandhian Approach – An Experience of Working in few Villages of Wardha District, Maharashtra Indian J Med Res 2019 , 149, suppl S1: 63-67a.
[41] Naidu, M. (2006). INDIAN DEMOCRACY: A CASE STUDY IN CONFLICT RESOLUTION AND PEACE BUILDING. Peace Research, 38(2), 71-97. Retrieved May 5, 2020, from www.jstor.org/stable/23607991
[42] http://delhimediationcentre.gov.in/history.htm
[43] P.B. Udgaonkar, Political Institutions and Administration, Motilal Banarsidass Publishers Pvt. Ltd., New Delhi,1986, p. 209.
[44] Tewari, O.P, The Arbitration & Conciliation Act with Alternative Dispute Resolution, 4th Edition(2005) Reprint
2007, Allahabad Law Agency, Faridabad, pp. 2- 4
[45] Sarvesh Chandra, ADR: Is Conciliation the Best Choice, in P.C. Rao and William Sheffield (eds.), Alternative
Dispute Resolution: What it is and How it Works, Universal Law Publishing Co., New Delhi, (1997) p. 85.
[46] Supra 15
[47] . K. Jayachandra Reddy, Alternate Dispute Resolution, in P.C. Rao and William Sheffield (eds.), Alternative
Dispute Resolution: What it is and How it Works, Universal Law Publishing Co., New Delhi, (1997) p. 79
[48] Part IX and Art.243 of the Indian Constitution make comprehensive provisions for establishment and regulation of Panchayat system.
[49] The Constitution of India, 1950, Art. 40.
[50] Before 1996 ADR in India was regulated via Arbitration (Protocol and Convention) Act, 1937; Indian Arbitration Act, 1940 and Foreign Awards (Recognition and Enforcement) Act, 1961.
[51] Section 89 of Code of Civil Procedure 1908 read with Order X, Rules 1A, 1B and 1C
[52] In Afcons Infrastructure Ltd. and Anr. v. Cherian Varkey Construction Co. (P) Ltd. and Ors. (2010) 8 SCC 24 the court equated mediation to the proceedings before Lok-Adalat.
[53] kelsa.nic.in The Legal Services Authorities Act of 1987
[54] legalserviceindia.com
[55] The Constitution (Seventy Third Amendment) Act, 1992.
[56] These Committees in Maharashtra are called 'Tanta Mukta Samiti' and they are aimed at achieving the goal of dispute free village(Tanta Mukta Gaon) http://www.mahapolice.gov.in/mahapolice/jsp/temp/disputefree.jsp
[57]STA Law Firm, Comparative Analysis Of ADR Methods With Focus On Their Advantages And Disadvantages, Mondaq, February 05, 2019, https://www.mondaq.com/arbitration-dispute-resolution/777618/comparative-analysis-of-adr-methods-with-focus-on-their-advantages-and-disadvantages
[58] Cheryl A. Picard, The Many Meanings of Mediation: A Sociological Study of Mediation in Canada' (Carleton University,Ottawa, Ontario, 2000).
[59] Serdara Jola Piletića, Podgorica, Basic Principles of Mediation, August 29, 2017, http://www.posredovanje.me/en/posredovanje/osnovna-nacela-posredovanja
[60] Stephen B. Goldberg, Frank E.A. Sander, Nancy H. Rogers & S.R. Cole, Dispute Resolution:
Negotiation, Mediation and other Processes (Aspen Law & Business, New York, 3rd Edn.).
[61] Joanne Goss, An Introduction to Alternative Dispute Resolution, 34 (1) Alta. L. Rev. 1 (1995) (Can.).
[62] Henry J. Brown and Arthur L. Mariot, ADR Principles and Practice (Sweet & Maxwell, London, 2nd Edn.,1997).
[63] Kimberly Taylor, Esq., Mediation: Confidentiality and Enforceability, JAMS ADR Blog, April 6, 2015, https://www.jamsadr.com/blog/2015/mediation-confidentiality-and-enforceability
[64] Shraddha Bhosale, Confidentiality in Mediation: An Indian Perspective, Kluwer Mediation Blog, January 18, 2016, http://mediationblog.kluwerarbitration.com/2016/01/18/confidentiality-in-mediation-an-indian-perspective/?doing_wp_cron=1597226022.6561560630798339843750
[65] Nancy Foster, Good Communication Starts With Listening, MediateIndia.com, mediate.com/articles/foster2.cfm
[66] Robert Bolton, People Skills (New York: Simon & Schuster, 1979)
[67] Dr. Pankaj Kakde, Mediation via Panchayat System in India: Ancient to ModernIndian Jurisprudence, Law Beacon, Peer-reviewed, Bi-annual Journal Published by Akola Law College, Vol.1 p.n. 92-96
[68] LaxmiKant Gaur, QUALITIES OF A GOOD MEDIATOR, delhidistrictcourts e- Journal, https://delhidistrictcourts.nic.in/ejournals/Q_mediation2.pdf
[69] ADR and Mediation Rules, 2003, https://www.latestlaws.com/bare-acts/central-acts-rules/alternative-dispute-resolution-laws/arbitration-and-conciliation-act-1996/adr-mediation-rules2003/
[70] Pon Staff, The Mediation Process and Dispute Resolution:Understand the 6 steps necessary in the mediation process, HARVARD LAW SCHOOL DAILY BLOG, July 7, 2020, https://www.pon.harvard.edu/daily/mediation/dispute-resolution-how-mediation-unfolds/
[71] Supra at 12
[72] Profesionalism, Cambridge Dictionary, (10th ed. 2014)
[73] Josefina Rendon, Mediator Ethics and Professionalism: A Recipe for Success, MediateIndia, https://www.mediate.com/articles/RendonJ6.cfm
[74] Ibid
[75] David Jones, The Advantages and Disadvantages of Mediation, Glaisyers, November 8, 2019, https://www.glaisyers.com/advantages-and-disadvantages-of-mediation/
[76] Constantin-Adi Gavrila, 212 qualities of a good mediator, Kluwer Mediation Blog, February 12, 2012, http://mediationblog.kluwerarbitration.com/2012/02/19/212-qualities-of-a-good-mediator/?doing_wp_cron=1597337821.1736419200897216796875
[77] Available at: http://www.uncitral.org/ (last viewed on Dec. 15, 2019).
[78] The Arbitration and Conciliation Act, 1996.
[79] The Arbitration and Conciliation Act, 1996, s.11.
[80] The Arbitration and Conciliation Act, 1996, s.34
[81] Supra note 1 at 4.
[82] Renusagar Power Co. Ltd v. General Electric Co, 1994 SCC Supl. (1) 644.
[83] The Arbitration and Conciliation Act, 1996, ss. 3, 34
[84] The Arbitration and Conciliation Act, 1996, s. 31
[85] The Code of Civil Procedure, 1908.
[86] The Arbitration and Conciliation Act, 1996, s.43.
[87] The Limitation Act, 1963 (36 of 1963).
[88] Supra Note 1 at 4
[89] Ibid at 8.
[90] Dr. Anupam Kurlwal, Applicability of limitation act to arbitration proceedings: A critical study, 4 IJL 185 (2018).
[91] Supra note 1 at 4.
[92] 17Id. At 8.
[93] The Arbitration and Conciliation Act, 2015, ss.1, 12. 19The Arbitration and Conciliation Act, 2015, ss.5, 12. 20 The Arbitration and Conciliation Act, 2015, s. 15.
[94] Supra note 1 at 4.

Written By: Hrishikesh Prakash Jaiswal - 3rd year B.A., L.L.B(Hons) student at National Law Institute University, Bhopal, India

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