This Article is written by Anurag Singh (a law student from GGSIPU, New Delhi)
Table of Contents
Introduction
It is a common saying that people tend to walk away from white and black coats, i.e. Doctors and Lawyers. And to some extent, everyone has experiences supporting this notion of avoiding doctors and lawyers in one’s life. The reason is pretty clear- money and mental agony. Think of it- whenever you are in a hospital, you always pray to the Almighty to get discharged from there as soon as possible. This is because of simple reasons to save the money that is incurred on your treatment of the disease and to give you peace of mind by leaving the hospital. The same is the scenario with the courtrooms and special courts in a country like India where around 4.70 crores cases are pending (including the cases pending in the Supreme Court of India). According to a report[1],over 4.70 crore cases pending in various courts , the total number of cases pending in the 25 high courts stood at 58,94,060 as on March 21 this year. The pendency in the apex court was recorded on March 2 this year.
So, in all readiness, people always avoid going to the hospitals or the courtrooms. Hence, alternative dispute resolution, popularly known as ADRs help people to solve their disputes outside the boundaries of the courtroom in an efficient manner.
Methods of Alternative Dispute Redressal (ADR) can be broadly divided into three categories-
- Arbitration
- Conciliation
- Mediation.
Arbitration
Every Indian loves watching and playing cricket. In a cricket match, there are two teams- one of them is the batting side and the other one is the fielding side. Crucial decisions like giving out to a batsman, declaring a ball as a no-ball or wide or keeping a check on the behaviour of the players, all are controlled by the umpire in the match. The umpire is like the boss of the game and every decision by him is final and not subject to objections by either of the team. Also, in most cases, the umpire is from a neutral country, i.e. not from the batting side’s country or the bowling side’s country.
The rules of arbitration are just like that. Arbitration in simple words refers to a process where both the parties of the dispute appoint a third person called the arbitrator, (who is neutral and acts purely on the merits of the case,) to resolve their dispute and the decision of the arbitrator is mostly final in all cases of arbitration. It is commonly used in disputes that are commercial in nature. Parties who have inserted an arbitration clause in the contract can refer the dispute to arbitration. The parties can select the venue, the language in which the proceedings take place as well as the applicable law so as to make certain that no party gets an undue advantage.
Arbitration in India
In our country the arbitration and Conciliation Act 1996 has relevant provisions regarding the arbitration proceedings. Also on November 4, 2020, the Arbitration and Conciliation (Amendment) Ordinance, 2020 was implemented with two major amendments. First, the enforcement of an arbitration award could be stayed unconditionally if the court can infer that the contract/agreement or the award was given fraudulently or under undue influence. Second, after much scrutiny and discourse, the qualifications and experience required for approving an arbitrator were deleted from the Eighth Schedule of the said Act
Conciliation
The process of Conciliation is somewhat similar to the process of Arbitration with some minor changes only. The basic difference between the two is that is that in arbitration proceedings the award is the decision of the Arbitral Tribunal while in the case of conciliation the decision is that of parties arrived at with the assistance of the conciliator. Hence, conciliation can be defined a process where the disputing parties resolve their dispute with the help of a conciliator who helps them to arrive at reasonable remedies of the dispute at hand. The conciliator plays the same role in the process of conciliation as an arbitrator plays in the process of an arbitration.
Conciliation in India
Part III of the Arbitration and Conciliation Act, 1996 deals with conciliation. It is a voluntary proceeding where parties in dispute agree to resolve their dispute through conciliation. It is a flexible process which allows the parties to decide the time and place for conciliation, structure, content and terms of negotiations. In Conciliation, the conciliators are trained and qualified neutral person who help the conflicting parties to make them understand the issues in dispute and their interest to reach mutually accepted agreements.
Mediation
Mediation is a more informal process than arbitration and conciliation. The parties are in charge of the mediation proceedings and the mediator (one who controls the mediation proceedings) tries to reach a conclusion which is suited to both the parties. The mediator acts as a middle person who helps to come on a negotiated common point of their dispute. They are trained professionals or sometimes attorneys who assist the parties in dispute to meet at a common place where they can discuss their issues and can try to negotiate to reach at a common output.
In Mediation, the parties are the decision makers. Mediators don’t decide what is right or wrong or what is fair or unfair. Mediator can’t impose his opinion upon the parties but he can suggest and help the parties to reach a mutual accepted agreement.In mediation, both parties are responsible for reaching the outcome. The role of the parties in mediation is not to convince the mediator but to come up with a common solution which is acceptable by both the parties.
Types of Mediation[2]
- Court referred mediation– The court may refer the pending case to a mediator for mediation if they think there is possibility for the settlement of the case. The act of referring cases is given in Section 89 of the civil procedure code, 1908. These kinds of mediation are used in matters like divorce cases or cases which deals under Negotiable Instrument Act, 1881.
- Private mediation– In this kind of mediation, the professional and trained person works as Mediator. The general public, government authorities, personnel from corporate sector or anyone from court can approach them for settling their dispute through mediation.
[1]Over 4.70 crore cases pending in various courts: Govt – The Economic Times (indiatimes.com)
