ASSIGNMENT

ON
DIFFERENCE BETWEEN DIFFERENT MODES OF
ALTERNATE DISPUTE RESOLUTION

Submitted To
Ms. Madhu Saini`

Shanyan Yameen Mazhari

Semester – VII ‘B’, 2018

Faculty Of Law

JAMIA MILLIA ISLAMIA UNIVERSITY, New Delhi

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 ACKNOWLEDGEMENT

In performing this assignment, I had to take the help and guideline of some respected
persons, who deserve my greatest gratitude. The completion of this assignment gives me
much pleasure. I would like to expand my deepest gratitude to all those who have directly
and indirectly guided me in writing this assignment.
In addition, a thank you to Ms. Madhu Saini, who introduced me to the methodology of work,
and whose passion for the subject had a lasting effect..
Many people, especially my classmates, have made valuable comment suggestions on
this proposal which gave me an inspiration to improve my assignment. I thank all the
people for their help directly and indirectly who have helped in completing this
assignment.

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 TABLE OF CONTENTS

I. Introduction................................................................................4
II. Different Types Of Alternate Dispute Resolutions....................6
III. Arbitration...................................................................................7
IV. Conciliation.................................................................................9
V. Mediation...................................................................................11
VI. Judicial Settlement.....................................................................12
VII. Lok Adalat.................................................................................14
VIII. Difference B/w Mediation & Other Dispute Resolution...........15
IX. Difference B/w Conciliation & Mediation.................................17
X. Difference B/w Mediation & Arbitration...................................19
XI. Difference B/w Mediation & Lok Adalat..................................20.
XII. Conclusion..................................................................................21
XIII. Bibliography................................................................................22

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 INTRODUCTION

Dispute resolution is an indispensable process for making social life peaceful. Dispute
resolution process tries to resolve and check conflicts, which enables persons and group
to maintain co-operation. It can thus be alleged that it is the sin qua non of social life and
security of the social order, without which it may be difficult for the individuals to carry
on the life together.1
Alternative Dispute Resolution (ADR) is a term used to describe several different modes
of resolving legal disputes. It is experienced by the business world as well as common
men that it is impracticable for many individuals to file law suits and get timely justice.
The Courts are backlogged with dockets resulting in delay of year or more for the parties
to have their cases heard and decided. To solve this problem of delayed justice ADR
Mechanism has been developed in response thereof.
Alternative dispute redressal method are being increasingly acknowledged in field of law
and commercial sectors both at National and International levels. Its diverse methods can
helps the parties to resolve their disputes at their own terms cheaply and expeditiously.
Alternative dispute redressal techniques are in addition to the Courts in character.
Alternative dispute redressal techniques can be used in almost all contentious matters,
which are capable of being resolved, under law, by agreement between the parties.
Alternative dispute redressal techniques can be employed in several categories of
disputes, especially civil, commercial, industrial and family disputes2. Form the study of
the different alternative dispute redressal techniques in the proceedings chapters it is
found that, alternative dispute redressal methods offers the best solution in respect of
commercial disputes where the economic growth of the Country rests. The goal of
Alternative dispute redressal is enshrined in the Indian Constitution’s preamble itself,
which enjoins the state: “to secure to all the citizens of India, justice-social, economic
and political-liberty, equality and fraternity”.3
The Law Commission of India has maintained that, the reason judicial delay is not a lack
of clear procedural laws, but rather the imperfect execution, or even utter non-
observance, thereof.4 The Law Commission of India in its 14th Report categorically

1
Park and Burger, Introduction to the Science of Sociology p. 735
2
Hindu Marriage Act 1955, Industrial Dispute Act, 1947, The Code of Civil Procedure, The Family Court
Act, 1984.
3
The Preamble of Indian Constitution
4
Law Commission of India, 77th Report, pr. 4.1.

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stated that, the delay results not from the procedure laid down by the legislations but by
reason of the non-observance of many of its important provisions particularly those
intended to expedite the disposal of proceedings. Given the huge number of pending
cases, the governance and administrative control over judicial institutions through
manual processes has become extremely difficult.5 The Supreme Court made it clear that
this stage of affair must be addressed: ‘An independent and efficient judicial system in
one of the basic structures of our constitution… It is our Constitutional obligation to
ensure that the backlog of cases is declared and efforts are made to increase the disposal
of cases.”6 Wide range of process are defined as alternative dispute redressal process
often, dispute resolution process that are alternative to the adjudication through Court
proceedings are referred to as alternative dispute resolution methods. These methods
usually involve a third party referred to as neutral, a skilled helper who either assists the
parties in a dispute or conflict to reach at a decision by agreement or facilitates in
arriving at a solution to the problem between the party to the dispute.7 The alternative
disputes resolution mechanism by the very methodology used, it can preserve and
enhance personal and business relationships that might otherwise be damages by the
adversarial process. It is also flexible because it allows the contestants to choose
procedures, which fir the nature of the dispute and the business context in which it
occurs. The term “Alternative Disputes Resolution” takes in its fold, various modes of
settlement including, Lok Adalats, arbitration, conciliation and Mediation. This
technique of Alternative Disputes Resolution has been used by many countries for
effective disputes resolution. The most common types of Alternative Disputes
Resolution is Mediation. In, fact mediation had been described by some as the most
Appropriate Dispute Resolution method. Mediation as a tool for dispute resolution is not
a new concept. To put it in simple terms, mediation is an amicable settlement of disputes
with the involvement of a neutral third party who acts as a facilitator and is called a
‘Mediator”.

5
In all, 33,79,033 cases are pending before the High Courts. As on December 31, 2004, the total number
of civil cases are pending before the subordinate judiciary is 82,36,254 and criminal cases pending are
1,95,85,776. The total pendency thus is 2,78,22,030. This shows that out of the total national pendency at
the subordinate Courts level, 70% is criminal cases and the remaining is civil cases. The total number of
district and subordinate Courts are 12,401. These Courts are located in 2,066 towns.
6
Brij Mohan Lal vs. Union of India & Other (2002-4-scale-433), May 6, 2002
7
Tania Sourdin, Alternative Dispute Resolution. p. 4

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DIFFERENT TYPES OF ALTERNATIVE DISPUTE RESOLUTIONS

The most common types of ADR for civil cases are Arbitration, Conciliation, Mediation,
Judicial Settlement and Lok Adalat. In India, the Parliament has amended the Civil
Procedure Code by inserting Section 89 as well as Order 10 Rule 1-A to 1-C. Section 89
of the Civil Procedure Code provides for the settlement of disputes outside the Court. It
is based on the recommendations made by the Law Commission of India and Malimath
Committee. It was suggested by the Law Commission of India that the Court may
require attendance of any party to the suit or proceedings to appear in person with a view
to arriving at an amicable settlement of dispute between the parties and make an attempts
to settle the dispute between the parties amicably. Malimath Committee recommended to
make it obligatory for the Court to refer the dispute, after issues are framed, for
settlement either by way of Arbitration, Conciliation, Mediation, Judicial Settlement
through Lok Adalat. It is only when the parties fail to get their disputes settled through
any of the alternate disputes resolution method that the suit could proceed further. In
view of the above, new Section 89 has been inserted in the Code in order to provide for
alternative dispute resolution. On joint reading of Section 89 read with Rule 1-A of
Order 10 of Civil Procedure Code, it transpires that the Court to direct the parties to opt
for any of the five modes of the Alternative Dispute Resolution and on their option refer
the matter.
Thus, the five different methods of ADR can be summarized as follows: -
1. Arbitration
2. Conciliation
3. Mediation
4. Judicial Settlement
5. Lok Adalat

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ARBITRATION

The definition of ‘arbitration’ in section 2(1) (a) verbatim reproduces the text of article 2(a)
of the Model Law-‘arbitration means any arbitration whether or not administered by a
permanent arbitral institution’. It is a procedure in which the dispute is submitted to an
arbitral tribunal which makes a decision (an “award”) on the dispute that is binding on the
parties8It is a private, generally informal and non-judicial trial procedure for adjudicating
disputes. There are four requirements of the concept of arbitration: an arbitration agreement;
a dispute; a reference to a third party for its determination; and an award by the third party. It
is a private, generally informal and non-judicial trial procedure for adjudicating disputes.

There are four requirements of the concept of arbitration:

an arbitration agreement;

a dispute;

a reference to a third party for its determination;

and an award by the third party.

The essence lies in the point that it is a forum chosen by the parties with an intention that it
must act judicially after taking into account relevant evidence before it and the submission of
the parties.9Hence it follows that if the forum chosen is not required to act judicially, the
process it is not arbitration.

Types of arbitration are:

Ad Hoc Arbitration

An ad hoc arbitration is one which is not administered by an institution and therefore, the
parties are required to determine all aspects of the arbitration like the number of arbitrators,
manner of their appointment, etc. Provided the parties approach the arbitration in a spirit of
cooperation, ad hoc proceedings can be more flexible, cheaper and faster than an
administered proceeding. The advantage is that, it is agreed to and arranged by the parties
themselves. However, the ground realities show that arbitration in India, particularly ad hoc
arbitration, is becoming quite expensive vis-à-vis traditional litigation.

Institutional Arbitration

An institutional arbitration is one in which a specialized institution with a permanent

character intervenes and assumes the functions of aiding and administering the arbitral
process, as according to the rules of that institution. It is important to note that these
institutions do not arbitrate the dispute, it is the arbitrators who arbitrate, and so the term

8
P.C. Rao & William Sheffield, Universal Law Publishing Co. Pvt. Ltd., Alternative Dispute Resolution:
What is it and how it works, at 26(1997 ed., 2006).
9
Pride of Asia Films v Essel Vision (2004) 3 Arb. LR 169, 180 (Bom).

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arbitration institution is inapt and only the rules of the institution apply. Incorporation of
book of rules in the “arbitration agreement” is one of the principle advantages of institutional
arbitration. Institutional Arbitration, throughout the world, is recognized as the primary mode
of resolution of international commercial disputes. It is an arbitration administered by an
arbitral institution.10

Further, in many arbitral institutions such as the International Chamber of Commerce (ICC),
before the award is finalized and given, an experienced panel scrutinizes it. As a result, the
possibilities of the court setting aside the award is minimal.

Statutory Arbitration

When a law specifies that if a dispute arises in a particular case it has to be referred to
arbitration, the arbitration proceedings are called “statutory arbitration”. Section 2(4) of the
Arbitration and Conciliation Act 1996 provides, with the exception of section 40(1), section
41 and section 43, that the provisions of Part I shall apply to every arbitration under any other
act for the time being in force in India.

Fast track arbitration

Fast track arbitration is a time-bound arbitration, with stricter rules of procedure, which do
not allow any laxity for extensions of time, and the resultant delays, and the reduced span of
time makes it more cost effective. Sections 11(2) and 13(2) of the 1996 Act provides that the
parties are free to agree on a procedure for appointing an arbitrator and choose the fastest way
to challenge an arbitral award respectively. The Indian Council of Arbitration (ICA) has
pioneered the concept of fast track arbitration in India and under its rules, parties may request
the arbitral tribunal to settle disputes within a fixed timeframe.

10
A Consultation Paper, Proposed Amendments to the Arbitration and Conciliation Act, 1996, Ministry of
Law and Justice, Government of India, at 18.

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CONCILIATION

Conciliation is an alternative dispute resolution process whereby the parties to a dispute

use a conciliator, who meets with the parties separately in order to resolve their
differences. They do this by lowering tensions, improving communications, interpreting
issues, providing technical assistance, exploring potential solutions and bring about a
negotiated settlement. It differs from Arbitration in that. Conciliation is a voluntary
proceeding, where the parties involved are free to agree and attempt to resolve their
dispute by conciliation. The process is flexible, allowing parties to define the time,
structure and content of the conciliation proceedings. These proceedings are rarely
public. They are interest-based, as the conciliator will when proposing a settlement, not
only take into account the parties' legal positions, but also their; commercial, financial
and /or personal interests.11 The terms conciliation and mediation are interchangeable in
the Indian context. Conciliation is a voluntary process whereby the conciliator, a trained
and qualified neutral, facilitates negotiations between disputing parties and assists them
in understanding their conflicts at issue and their interests in order to arrive at a mutually
acceptable agreement. Conciliation involves discussions among the parties and the
conciliator with an aim to explore sustainable and equitable resolutions by targeting the
existent issues involved in the dispute and creating options for a settlement that are
acceptable to all parties. The conciliator does not decide for the parties, but strives to
support them in generating options in order to find a solution that is compatible to both
parties. The process is risk free and not binding on the parties till they arrive at and sign
the agreement. Once a solution is reached between the disputing parties before a
conciliator, the agreement had the effect of an arbitration award and is legally tenable in
any court in the country12. Most commercial disputes, in which it is not essential that
there should be a binding and enforceable decision, are amenable to conciliation.
Conciliation may be particularly suitable where the parties in dispute wish to safeguard
and maintain their commercial relationships. The following types of disputes are usually
conducive for conciliation:
• commercial,
• financial,
• family,

11
See http://www.dispute-resolution-hamburg.com/conciliation/what-is-conciliation/
12
See http://www.ficci-arbitration.com/htm/whatisconcialation.htm

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• real estate,
• employment, intellectual property,
• insolvency,
• insurance,
• service,
• partnerships,
• environmental and product liability.
• Apart from commercial transactions, the mechanism of Conciliation is also adopted for
settling various types of disputes such as labour disputes, service matters, antitrust
matters, consumer protection, taxation, excise etc

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MEDIATION

Now, worldwide mediation settlement is a voluntary and informal process of resolution

of disputes. It is a simple, voluntary, party centered and structured negotiation process,
where a neutral third party assists the parties in amicably resolving their disputes by
using specified communication and negotiation techniques. Mediation is a process where
it is controlled by the parties themselves. The mediator only acts as a facilitator in
helping the parties to reach a negotiated settlement of their dispute. The mediator makes
no decisions and does not impose his view of what a fair settlement should be 13. In the
mediation process, each side meets with a experienced neutral mediator. The session
begins with each side describing the problem and the resolution they desire – from their
point of view. Once each sides’ respective positions are aired, the mediator then
separates them into private rooms, beginning a process of “Caucus Meeting” and
thereafter “joint meetings with the parties”. The end product is the agreement of both the
sides. The mediator has no power to dictate his decision over the party. There is a win –
win situation in the mediation. The chief advantages of the mediation are14 :
1. The agreement which is that of the parties themselves;
2. The dispute is quickly resolved without great stress and expenditure;
3. The relationship between the parties are preserved; and
4. The confidentiality is maintained.

13
An Article “Disputes among Business Partners should be Mediated or Arbitrated, Not Litigated” by
William Sheffield, Judge, Supreme Court of California (Ret.) published in book “Alternative Dispute
Resolution – What it is and how it works” Edited by P. C. Rao and William Sheffield, page No.291
14
Ibid page 289

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JUDICIAL SETTLEMENT

Section 89 of the Civil Procedure Code also refers to the Judicial Settlement as one of
the mode of alternative dispute resolution. Of course, there are no specified rules framed
so far for such settlement. However, the term Judicial Settlement is defined in Section 89
of the Code. Of course, it has been provided therein that when there is a Judicial
Settlement the provisions of the Legal Services Authorities Act, 1987 will apply. It
means that in a Judicial Settlement the concerned Judge tries to settle the dispute
between the parties amicably. If at the instance of judiciary any amicable settlement is
resorted to and arrived at in the given case then such settlement will be deemed to be
decree within the meaning of the Legal Services Authorities Act, 1987. Section 21 of the
Legal Services Authorities Act, 1987 provides that every award of the Lok Adalat shall
be deemed to be a decree of the Civil Court. There are no written guidelines prescribed
in India as to judicial settlement. But in America, ethics requiring judicial settlement has
been enumerated by Goldschmidt and Milford which are as under:15
The following are guidelines for judicial settlement ethics:
1. Separation of Functions: Where feasible, the judicial functions in the settlement and
trial phase of a case should be performed by separate judges.
2. Impartiality and Disqualification: A judge presiding over a settlement conference is
performing judicial functions and, as such, the applicable provisions of the code of
judicial conduct, particularly the disqualification rules, should apply in the settlement
context.
3. Conference Management: Judges should encourage and seek to facilitate settlement in
a prompt, efficient, and fair manner. They should not, however, take unreasonable
measures that are likely under normal circumstances to cause parties, attorneys, or other
representatives of litigants to feel coerced in the process. The judge should take
responsibility in settlement conferences.
4. Setting Ground Rules on Issues Such as Confidentiality, Disclosure and Ex Parte
Communications: In settlement conferences, judges should establish ground rules at the
onset, either orallyor in writing, informing parties and their attorneys of the procedures
that will be followed. The rules should include ground rules governing issues such as

15

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confidentiality, disclosure of facts and positions during and after conferences, and ex
parte communications.
5. Focusing the Discussions: A judge should use settlement techniques that are both
effective and fair, and be mindful of the need to maintain impartiality in appearance and
in fact.
6. Guiding or Influencing the Settlement: The judge should guide and supervise the
settlement process to ensure its fundamental fairness. In seeking to resolve disputes, a
judge in settlement discussions should not sacrifice justice for expediency.
7. Sanctions or Other Penalties Against Settlement Conference Participants: A judge
should not arbitrarily impose sanction or other punitive measures to coerce or penalize
litigants and their attorneys in the settlement process.

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LOK ADALAT

The concept that is gaining popularity is that of Lok Adalats or people’s courts as
established by the government to settle disputes through conciliation and compromise. It
is a judicial institution and a dispute settlement agency developed by the people
themselves for social justice based on settlement or compromise reached through
systematic negotiations. The first Lok Adalats was held in Una aim the Junagadh district
of Gujarat State as far back as 1982. Lok Adalats accept even cases pending in the
regular courts within their jurisdiction. Section 89 of the Civil Procedure Code also
provides as to referring the pending Civil disputes to the Lok Adalat. When the matter is
referred to the Lok Adalat then the provisions of the Legal Services Authorities Act,
1987 will apply. The Lok Adalat is presided over by a sitting or retired judicial officer as
the chairman, with two other members, usually a lawyer and a social worker. There is no
court fee, thus making it available to those who are the financially vulnerable section of
society. In case the fee is already paid, the same is refunded if the dispute is settled at the
Lok Adalat. The Lok Adalat are not as strictly bound by rules of procedure like ordinary
courts and thus the process is more easily understood even by the uneducated or less
educated. The parties to a dispute can interact directly with the presiding officer, which
is not possible in the case of normal court proceedings. If any matter is referred to the
Lok Adalat and the members of the Lok Adalat will try to settle the dispute between the
parties amicably, if the dispute is resolved then the same will be referred to the
concerned Court, which will pass necessary decree therein. The decree passed therein
will be final and binding to the parties and no appeal will lie against that decree. On the
flip side, the main condition of the Lok Adalat is that both parties in dispute have to be
agreeable to a settlement. Also, the decision of the Lok Adalat is binding on the parties
to the dispute and its order is capable of execution through legal process. No appeal lies
against the order of finality attached to such a determination is sometimes a retarding
factor for however be passed by Lok Adalat, only after obtaining the assent of all the
parties to dispute. In certain situations, permanent Lok Adalat can pass an award on
merits, even without the consent of parties. Such an award is final and binding. From
that, no appeal is possible.16

ADR – Its Facets, by Snajay Kishan Kaul. J. Chairman, Overseeing Committee Delhi High Court
16

Mediation and conciliation centre written in SAMADHAN –Reflections – 2006 – 10 page.

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DIFFERENCE BETWEEN THE MEDIATION AND OTHER DISPUTE
RESOLUTION PROCESS

The alternative dispute resolution procedures can be broadly classified into two groups,
first those that are adjudicative and adversarial, and second those, which are consensual
and non-adversarial. The latter group includes mediation.17 Sir Robert A. Baruch Bush
and Joseph P. Folger, in, “The promise of mediation” say that, in any conflict, the
principal objective ought to be to find a way of being neither victims nor victimizers, but
partners in an ongoing human interaction that is always going to involve instability and
conflict.18 There are several types of different dispute redressal methods that have
evolved owing to the different needs and circumstances of the society. The study of the
differences between them will help the disputant in choosing the best and the apt method
of resolving their disputes according to their needs. The dominant form of dispute
redressal method that is broadly adopted for the resolution of a dispute is, by filing of
case before the Court of law. With the bird eye view, it can be said that, in the process of
adjudication through Court of law, someone has to lose among the disputing party. The
litigation route has now become slow, expensive, and uncertain in its outcome. The
Courts and Tribunals do not 'resolve' a dispute, but they only “decide” a dispute or
“adjudicate” on them. Whereas, in the case of mediation, the parties can try to agree with
one another, were a mediator acts as a facilitator. Mediation has the advantage as it can
lead to finality because, it allows for informed and un-coerced decisions to be taken by
everyone involved. Disputes are resolved in the process of mediation through consensual
interaction between the disputants.19 The mediator in promoting or in other words,
facilitating resolution of the dispute by the parties themselves does not purport to decide
the issue between them. Mediation is more flexible, quick and less expensive than the
process of adjudication through Court of Law. Thus, the study reveals that, litigation
produces provides for fair and just results, but it is procedurally disadvantages as
compared to mediation. Mediation affords a far greater degree of flexibility, relative
informality, confidentiality and control over its resolution.
Comparative study of the process of ‘mediation’ and ‘arbitration’ shows that, mediation
is a form of expedited negotiation. The parties control the outcome. Mediator has no

17
Manka, ADR: What Is It And Why Do You Need To Know? 47 J Mo Bar 623, 625.
18
See Robert A. Baruch Bush and Joseph P. Folger, The promise of mediation (1994) at 229- 59.
19
Tania Sourdin, Alternative Dispute Resolution,(2002) p 2,3.

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power to decide. Settlement in the dispute is done only with party approval. Exchange of
information is voluntary and is often limited. Parties exchange information that will
assist in reaching a resolution. Mediator helps the parties define and understand the
issues and each side's interests. Parties vent feelings, tell story, and engage in creative
problem solving. Mediation process is informal and the parties are the active
participants. Joint and private meetings between individual parties and their counsel are
held in this process. Outcome based on needs of parties. Result is mutually satisfactory
and finally a relationship may be maintained or created. Mediation when compared with
arbitration is of low cost. It is private and confidential. Facilitated negotiation is an art.
Mediator is not the decision maker. Mediator is a catalyst. He avoids or breaks an
impasse, diffuse controversy, encourages generating viable options. He has more control
over the process. The process of mediation gives the parties many settlement options.
Relationship of parties is not strained in the process of mediation. There is a high degree
of commitment to settlement. Parties’ participation is there in the decision making
process. Thus, there is no winner and no loser in this process, only the problems are
resolved. In this process the disputed parties maintains the confidentiality of
proceedings.20

20
L, Boulle, Mediation: Principles, process, practice (Butterworths, Sydney,1996) p10-14.

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THE DIFFERENCE BETWEEN CONCILIATION AND MEDIATION

Under our law and the UNCITRAL model, the role of the mediator is not pro-active and
is somewhat less than the role of a ‘conciliator’. We have seen that under Part III of the
Arbitration and Conciliation Act, the ’Conciliator’s powers are larger than those of a
‘mediator’ as he can suggest proposals for settlement. Hence the above meaning of the
role of ‘mediator’ in India is quite clear and can be accepted, in relation to sec. 89 of the
Code of Civil Procedure also. The difference lies in the fact that the ‘conciliator’ can
make proposals for settlement, ‘formulate’ or ‘reformulate’ the terms of a possible
settlement while a ‘mediator’ would not do so but would merely facilitate a settlement
between the parties. Brown quotes21 which offers a range of dispute resolution processes,
facilitative, evaluative and adjudicative. It is there stated that conciliation “is a process in
which the Conciliator plays a proactive role to bring about a settlement” and mediator is
“a more passive process”. This is the position in India, UK and under the UNCITRAL
model. However, in the USA, the person having the pro-active role is called a ‘mediator’
rather than a ‘conciliator’. Brown says22 that the term ‘Conciliation’ which was more
widely used in the 1970s has, in the 1970s, in many other fields given way to the term
‘mediation’. These terms are elsewhere often used interchangeably.
Where both terms survived, some organizations use ‘conciliation’ to refer to a more
proactive and evaluative form of process. However, reverse usage is sometimes
employed; and even in UK, ‘Advisory, Conciliation and Arbitration Service’ (ACAS)
(UK) applies a different meaning. In fact, the meanings are reversed. In relation to
‘employment’, the term ‘conciliation’ is used to refer to a mediatory process that is
wholly facilitative and non-evaluative. The definition of ‘conciliation’ formulated by the
ILO (1983) is as follows:

“the practice by which the services of a neutral third party are used in a dispute as a
means of helping the disputing parties to reduce the extent of their differences and to
arrive at an amicable settlement or agreed solution. It is a process of orderly or rational
discussion under the guidance of the conciliator.”

21
(at p 127) the 1997 Handbook of the City Disputes Panel, UK
22
Page 272, ibid.

17
However, according to the ACAS, ‘mediation’ in this context involves a process in
which the neutral “mediator takes a more pro-active role than a conciliator for the
resolution of the dispute, which the parties are free to accept or reject. (The ACAS role
in Arbitration, Conciliation and Mediation, 1989). It will be seen that here, the
definitions, even in UK, run contrary to the meanings of these words in UK, India and
the UNCITRAL model.

18
DIFFERENCE BETWEEN THE MEDIATION AND ARBITRATION

TOPIC MEDIATION ARBITRATION

Structure of Process Introduction Joint Session, Claims/ counter claims,
Causes, Agreement Examination of
witnesses, Arguments
Nature of Process Collaborative, Adjudicatory Negotiatory, Directive
Procedure Non-procedural Procedural rules and
rules of evidence
Neutral third party Facilitator Adjudicator
Role of Active and direct Active only during
Parties/ Advocates evidence
Level of formality Informal Formal

19
DIFFERENCE BETWEEN THE MEDIATION AND LOK ADALAT

TOPIC MEDIATION LOK ADALAT

Forum Private Conferences Only in Court Premises
Morphology Structured process Persuasion and
discussion
Who Controls the Mediator controls Presiding Officer.
process structured process Process is not structure
Selection of neutral third Generally parties Parties do not enjoy any
party say in selection
Time Reasonable time Time Constrains
Who Control the Parties Presiding Officer
Outcomes
Confidentiality Private Public
Depth of Analysis Detailed analysis Casual of facts and law
discussion
Types of disputes All types of disputes Recovery/ Claims
settled disputes
Role of Parties Active and Direct Not active and direct

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CONCLUSION

With the advent of the alternate dispute resolution, there is new avenue for the people to
settle their disputes. The settlement of disputes in Lok Adalat quickly has acquired good
popularity among the public and this has really given rise to a new force to ADR and this
will no doubt reduce the pendency in law Courts. There is an urgent need for justice
dispensation through ADR mechanisms. The ADR movement needs to be carried
forward with greater speed. This will considerably reduce the load on the courts apart
from providing instant justice at the door-step, without substantial cost being involved. If
they are successfully given effect then it will really achieve the goal of rendering social
justice to the parties to the dispute.

21
BIBLIOGRAPHY

1) https://www.legalmatch.com/law-library/article/types-of-alternative-dispute-
resolution-adr.html
2) Lynch, J. "ADR and Beyond: A Systems Approach to Conflict Management",
Negotiation Journal, Volume 17, Number 3, July 2001, Volume, p. 213.
3) Gary Born "International Commercial Arbitration" (2009 Kluwer).
4) William Ury, Roger Fisher, Bruce Patton. "Getting to Yes" (1981 Penguin Group).

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