encyclopedia on mediation|ADV DR RAJKUMAR ADUKIA

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“MEDIATION - THE MAGIC WAND FOR CONFLICT
RESOLUTION”

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Dr. Rajkumar S. Adukia
author of more than 300 books
Global business growth and motivational coach
Passionate to make anyone speaker, writer,
assisting in acquiring professional
qualifications and promotion in job
member IFRS SMEIG London 2018-2020
ex director - SBI mutual fund, BOI mutual fund
B. Com (Hons.), M.Com.,FCA, FCS, FCMA, LL.B, MBA, Dip IFRS (UK), DLL&LW, DIPR, Dip in
Criminology, Ph.D, IP(IBBI), MBF, Dip HRM
student of , MA(psychology), LLM, CFE, IBBI(RV)+++++++++++++++++
ranks mumbai university 5th , inter CA 1st , final CA 6th , final CMA 3rd +++
Chairman western region ICAI 1997
Council Member ICAI 1998-2016
Mob: 98200 61049
Request to contact through email only
drrajkumarsadukia@gmail.com

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Napoleon Hill in his book “ Think and grow Rich” emphasizes on the finding
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in the way I looked at partnerships. Be it in relationships at home or at
business or profession, I began to either seek or be someone’s master mind.
This has created the most positive impact in the way I can build personal

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and professional relationships. There is great satisfaction in seeing each
other grow.
PREFACE
The significance and development of mediation cannot be
undermined in the progress of civilised society. It is a process of
assisted or guided negotiation for solving the conflict between
individual. Conflict being inevitable part of life can cause due to
disagreement with one‘s opinion such disagreement can be cultural,
personal or professional or other. However such disagreements can be
cured through an effective implementation of conflict resolution.
Negotiation is the most desired and effective form of
conflict resolution. It can mean a discussion that resolves an issue in
way that both parties find acceptable. The parties involved in
negotiation try to avoid arguing but agree to reach some form of
compromise. Negotiation is an art and a science. When applied to
mediation, the science tells us that the process has distinct stages.
Negotiation and Mediation both being flexible the later relates to a
process which the parties are undertaking in the presence of a third
party.
Mediation is the process that seeks to assist two or more
disputing parties to come to settlement through facilitated negotiation.

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In other word it is an assisted or guided negotiation. The process of
mediation is efficient, effective, speedy, convenient and less
expensive process to resolve a dispute with dignity, mutual respect
and civility.
Arbitration and conciliation are the other methods of alternative
dispute resolution at present such modes are govern by the Arbitration
and Conciliation Act 1996 which provides a thorough provision of
settlement through arbitration and conciliation.
Resolving a dispute through arbitration is less time-consuming
than going to court, but mediation is a significantly faster alternative.
Conciliation in loose term means mediation only. More above that
Negotiation should be foremost choice for conflict resolution. If
negotiation is not possible then mediation should be preferred
however that should be stop at mediation.
Litigation being the most familiar form of dispute resolution has
become more and more lengthy and time consuming thereby
defeating the idea of Justice delayed is justice denied. The huge
number pendency of cases and the idea to reduce the burdening from
the court have lead to the growth of alternative dispute resolution
which provides a method of tackling dispute by avoiding going to the
court.
Mediation being one of the methods of ADR amongst other has
emerged as the need of the hour to resolve conflict in an amicable
way. Any person can be a mediator by possessing the quality such as

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patience, persistence and common sense. A person while imparting
his role as a mediator must adapt certain skills such as negotiation
techniques, human dynamic skills and power of effective listening.
The persona must be mindful of the fact that he is there for the
purpose of assistance and in no way he can force his suggestion on
parties.
It is rightly said that Justice and Peace go hand in hand. The
concept of mediation inculcates this very idea and seeks that solution
to a problem is in the hand of people only, as the more that is done by
an individual themselves the higher the chance that it is being
accepted.
Keeping in mind such and other significance of mediation the
author have attempted to emphasis on mediation as the only option for
conflict resolution also why one should give a priority over mediation
amongst other.

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INDEX
Chapter
no.
Chapter name Page
no.
1 Introduction 7-8
2 What is mediation? 9-16
3 History of mediation 17-32
4 International position of mediation 33-39
5 What is conflict? 40-41
6 What is best method of conflict resolution and other methods 42-45
7 Court referred mediation and private mediation 46-50
8 Various laws in India where mediation is prescribed 51-66
9 Various laws in India where conciliation is prescribed 67-69
10 The Civil Procedure Alternative Dispute Resolution And
Mediation Rules, 2003
70-72
11 Best ways to negotiate Do‘s and Don‘ts 73-77
12 Difference and similarities between mediation and conciliation 78-82
13 Skills of best mediator 83-85
14 Ethics of mediator 86-91
15 Do‘s and Don‘ts of mediator 92-95
16 Stages in mediation process 96-101
17 No law apply to mediation – Mia Bibi Raji To Kya Karega Kazi 102
18 Win – win strategy 103-
106
19 Settlement of agreement in mediation process 107-

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108
20 Legal force of mediation settlement 109-
110
21 Skills of online mediation 111-
112
22 Who can be mediator, mediation centre 113-
115
23 Supreme court project committee on mediation 116-
125
24 Mediation centres in India 126-
135
25 Mediation centres outside India 136
26 Capacity of building as world‘s best mediator 137
27 Qualification of mediator- age of majority & sound mind and it is
global work
138-
140
28 Key aspects of few worlds mediation legislation 141 to
163
29 Future of mediation and role of we as a mediator in conflict resolution 164-
167
30 Websites 168-
169

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CHAPTER 1
INTRODUCTION:
Man must evolve for all human conflict a method which rejects
revenge, aggression and retaliation. The foundation of such a
method is love. – Martin Luther King, Jr.
The backlog of cases in the judicial system in India has made
alternative dispute resolution (ADR) mechanisms an urgent
need. Mediation is one of the ADR mechanisms that is gaining
importance throughout the country.
The development of mediation as a method of resolution of
dispute outside court is the greatest achievement of civilized society.
To define mediation in a simple manner one can affirm that Mediation
is an assisted or guided negotiation which do not focuses on right or
wrong, who is victor or who is vanquished, rather it involves the
rational or comprehensive manner to end the dispute which more of
concentrate towards finding out positive aspect of dispute and thereby
coming to solutions.
Trust being the factor is the very essence of the mediation. This
view can be seen similar to the father of our nation Mahatma Gandhi

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who described in his autobiography his experience at amicable
dispute resolution as an exercise in uniting parties riven due to
conflict. Gandhi's method of conflict resolution is based on a greater
understanding and love between the two parties involved in it. He
prescribed the trusteeship formula that brings about a change in the
attitude of disputing parties.
CHAPTER 2
WHAT IS MEDIATION?
Mediation is the ‗something else‘ to litigation, arbitration, and
conciliation as a structured dispute resolution process for resolving
conflicts. It is a collaborative manner of resolving disputes where the
parties make the ultimate decision on the terms at which they settle
their disputes. It is a completely voluntary process, which means that

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the parties can opt out of the process anytime they feel it is not
working for them. The mediator facilitates negotiation and
communication between the parties while uncovering their underlying
interests and identifies overlapping interests that can result in a zone
of possible agreement. The mediator coaches the parties to negotiate
effectively, by unhinging them from their positional bargaining style
and using a problem-solving manner. It is important for a mediator to
remain, and be perceived as being, neutral in the process.
In a civilized nation, settlement of dispute via amicable way is
always a priority. Interestingly, such an amicable way of resolving
dispute can be found in mediation. In India, settlement via mediation
has not been a new concept. As some element of mediation were
already existed in our society. It can be seen by the example of
solving dispute in rural areas through Village Panchayat. The
popularity of mediation as an alternative dispute resolution method is
evidenced by the fact that mediation has gradually made its way into
Dispute Resolution Clauses of almost all modern commercial
agreements
The process of mediation involves the intervention of the third
neutral and impartial person who assists the disputing parties
throughout the process with an aim of reaching to an amicable
solution.
We often come across to a situation where we at least for once
have acted as a mediator.

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Situation 1: Imagine a situation where you are sitting in your
office canteen having lunch with two of your colleague who are
couple and they start arguing over petty reason so either you let them
continue arguing or you try to make them help each other views.
Situation 2: Another situation where your children are fighting
over a TV remote and you instantly hand over your mobile to the
elder child so that other one can have remote and watch cartoon as per
his choice.
Situation 3: You are heading to work and saw two people
arguing over who pushed whom and liable to damage and you help
them in letting go such small thing you just acted as a mediator.
Every person in his life have performed the role of mediator at least
for once be that as a friend between quarrelling couple or parent
between two arguing siblings , or a passerby solving arguments
between two stranger on his way to office.
Mediation is a voluntary structured process in which involves
the intervention of a third impartial and neutral person who facilitates
communication and negotiation and promotes voluntary decision
making by the parties to the dispute.
Mediation is nothing but an assisted negotiation as the parties to
dispute are alone responsible in decision making. Mediation allows
the parties to have an opportunity to speak their mind. The
appointment of mediator should be done in agreement with the
parties.

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It is the foremost duty of mediator to disclose all the information
which will give rise to justifiable doubts with respect to his
independence and impartiality. In mediation process confidentiality
has given utmost importance the mediator is bound by policy of
confidentiality. He must in no case disclose the factual information
concerning the dispute. Any offer made in the process of mediation
has no bearing on the future record or conduct of both parties.
Mediator cannot appear as witness in future court proceedings and
disclose such information.
Party centred negotiation process:
Mediation is often termed as the party centred negotiation
process. It provides an efficient, effective, speedy, convenient and less
expensive process to resolve a dispute with dignity, mutual respect
and civility.
A forward focused process:
The process in mediation is concern with the present and future
rather being judge-mental about what happened in past. Normally it is
forward focused and not backward looking. As it is driven by an
approach of what happened in past cannot be rectified therefore one
should focus on what the present brings and bring solution which is
beneficial for present and future.
Equally beneficial process:

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Mediation works in a way as to what solution is in right interest
of both the parties and aimed at reaching amicable solution which is
equally beneficial to them.
Simply put, Mediation attempts to find out the positive side of
conflicts and makes use of such positives to find opportunities for
resolution.
Now a day, people prefer mediation over litigation and other
modes of dispute resolution. But what makes them to do so? Why
mediation is more and more in demand? The reason being is that its
higher chance of successful outcome. Yes you heard right. The
success rate in mediation process is mostly high as compared to other
methods. This is because the solution under mediation is not simply
black and white or there is no clear winner or loser as there is no time
to find out who is legally right or wrong. More emphasis is given on
solving the dispute amicably with certain conditions put forth by
parties. In other word there is win-win situation for both the parties to
the dispute as the settlement agreement under mediation is the result
of the acceptance to the condition put forth by them.
Mediation India is divided into two categories which are commonly
followed:
1. Court referred Mediation: The court may refer a pending case for
mediation in India under Section 89 of the Code of Civil Procedure,
1908. This type of mediation is frequently used in Matrimonial
disputes, particularly divorce cases

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2. Private Mediation: In Private Mediation, qualified personnel
works as mediators on a fixed-fee basis. Anyone from courts, to the
general public, to corporate as well as the government sector, can
appoint mediators to resolve their dispute through mediation
Evolution of Mediation:
The evolution of mediation and mankind goes hand in hand. It
was always present in one or other form In olden days disputes used
to be resolved in a Panchayat at the community level. Panches used to
be called Panch Parmeshwar. Mediation was in use even before we
can imagine its aspects can be found in Hindu mythology particularly
in Mahabharata wherein Krishna was entrusted with the role of
mediator.
The Chapter Nine, verse 29 of the holy Srimad Bhagvad Gita
written by Vyasa Muni, Lord Krishna says: ―I envy no one nor am
I partial to anyone; I am equal to all.‖ This is the ideal stance for a
mediator. Krishna tried many ways to bring the Pandavas and
Kauravas to a point of settlement without having to go to war. He
proposed various alternatives such as land concessions and appeal
to higher authority. He served as messenger and personally took
letters back and forth between the two camps. He even went
beyond the role of a traditional mediator by offering to become
personally involved. He offered to be an advisor to one side and to
give his armies to the other. That transcends the usual limits but

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the point is that mediation is not alien to the context of the Gita.
Mediation in some respects is the awakening of a deeper
consciousness among disputants. If you can come to see the other,
not as your enemy, but as someone experiencing life from a
different perspective, you are honouring them as you would have
them honour you—that‘s a spiritual principle.
This has been the underlying principle of mediation, it is
more than just the mode of settling the conflict. It inculcates the
adjustment in the mind set of disputing parties to listen to the
other party equally and bring a solution together which protects
the interest of both of them. The mediator helps the parties to look
at conflict from the perceptive of other party, giving an equal
opportunity to them and thereby creating a conducive
environment.
Mediation, or being the deciding party in a case, is nothing less
equivalent to being a deity. Such a power is reposed in them which is
no less than God‘s. Non-judgmental acceptance of every human being
is a critical and practical tool in mediation. Most religions and
spiritual practices advocate a non-judgmental approach.
The Vipassana meditation is about observing oneself and others
without judging. Jesus Christ in the Sermon on the Mount says ―Do
not Judge‖.
The Ones Not Seeking Peace Are Vanquished- This is one of
the valuable lesson that the Mahabharata teaches us. It implies that

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one should always strive to make peace and not be hard-nosed. The
plight of Kauravas after the battle of Kurukshetra is well known by
everyone. Therefore, it is always better to make amends when the
time is right and not regret it later.
The yet another classic example of this can be seen in
Ramayana where Lord Hanuman have acted as mediator between
Lord Ram and Ravana on his visit to lanka. Ravana refused to
cooperate and that resulted into destruction of whole of his kingdom.
Mediation has progressed as one of the method of alternative
dispute resolution also known as extrajudicial dispute resolution. The
alternative dispute resolution [hereinafter referred to as ADR] differs
from the traditional method of dispute resolution. The latter refers to
the resolution of dispute with intervention of courts, which is based
on the established procedure, whereas the ADR method restricts the
very intervention of court/judiciary, it is more flexible and party
centric as it involve a voluntary structured process, wherein a third
neutral /impartial person helps the parties to reach to a solution to
their dispute. Mediation along with arbitration, conciliation and
judicial settlement of via lok adalat form a tools of ADR. Although
all these four tools contained different procedure but has common aim
of providing a solution to conflict in a less formal manner and thereby
avoiding lengthy and costly legal procedures.

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CHAPTER 3
HISTROY OF MEDIATION IN INDIA AND ABROAD:
In the recent years mediation has evolved as the fasted
developing mechanism of ADR. The mediation and other forms of
ADR such as negotiation, arbitration, conciliation existed even prior
to the establishment of modern courts and continue to be there after it
establishment. Village elders, tribal chiefs, religious leaders, wise
men and women, commercial trade groups and community leaders

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have all served as intermediaries in resolving disputes by such
informal manners.
India:
The existence of law can be trace to some four thousand years back.
Our country in enrich by multi religion and the major religion such as
Hinduism, Islam, Jainism, Buddhism, Christianity and Zoroastrianism
are practised in India. The unwritten laws of divine wisdom, reason
and prudence is said to be invoked primarily by the early Aryans.
This law of divine wisdom, reason and prudence became the first
philosophy of mediation.
With the growth and progress of trade, industry and commerce and
our merchants started sailing the seven seas, sowing the seeds of
international commerce. The dispute used to be solve via Tribunals
particularly dispute amongst members of the family, community,
tribe, caste or race. A different tribunal, being a corporation of
artisans following the same business, used to deal with their internal
trade-related disputes. There were associations of traders dealing with
all branches of commerce. These associations were invested with the
power to decide cases on the principles of justice, equity and good
conscience.

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This procedure recognized the modern concept of participatory
methods of dispute resolution with a strong element of voluntariness,
which is the basis of modern mediation process.
Buddhism, in the 5th Century BC, propounded mediation as the
wisest method of resolving problems, which focuses more on the
future rather than dwelling in the past.
Buddha said, ―Mediation brings wisdom; lack of mediation leaves
ignorance, Know well what leads you forward and what holds you
back. Choose that, which leads to wisdom.‖
The concept of conflict management can be seen in
“Arthashastra”
In one of the treaty in arthashtra by chanakya dating back to
350-283 BC specify the conflict management. Chanakya maintained
that there are four methods of dispute resolution that is Sam, Dam,
Bhenda and Danda which can be translated into English as Adopting a
conciliatory approach, Placating with gifts, Sowing dissension Use of
Force respectively.
He went further explaining which method used with whom.
In case of dispute with a relative, associate, business partner and
where a cordial and a general atmosphere of trust exists, the
appropriate methods may be conciliation and Placating with goods.

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In case of dispute with employees and labour unions, the ideal
methods may be placating with gifts or sowing of dissension among
them.
In case of dispute with business rivals, competitors, unreasonable
people or with people who might or cannot be brought down to the
table then ideal methods may be the sowing of dissension among
them or the use of Force. Although the Chanakya emphasize on the
conciliation over other modes of dispute resolution, he prescribed
certain ways /feature of such which are similar and can be useful in
mediation.
Mutual connections : This involves extolling common relationship
with the conflicting party like common: blood relations, family
connections and friends, past work experience with an organisation,
mentor or boss, work ethics and business practices etc.
Mutual benefits : It means explaining the advantages that
will accrue to each of the two parties
Identity of interest : Shown by placing oneself at the others;
disposal (saying: What I am art thou, the wealth that is mine is thine,
use it as it pleases thee)

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Inducement : Raising the hopes of the other by pointing out
the beneficial results that will accrue to both, if a particular course of
action is adopted.
Moghul period:
During the Moghul rule, the cases of hindu people were given at
the hands of Brahmans. The villagers resolved their cases in the
village courts itself and appeal to the caste courts or panchayats, the
arbitration of an impartial umpire (Salis), or by a resort to force.‖
Emperor Akbar, in the 15th and early 16th century had
depended upon his mediator minister Birbal who possessed special
skills or knowledge for the purpose of imparting justice
We often heard a stories Akbar and Birbal where the latter used to
solve even the difficult situation and bringing happy and satisfying
ending to the problem.
Maratha rule:
The Maratha ruling system stressed on enforcement of the civil
suits and emphasised on amicable settlement of disputes. It showed
consideration to the defeated party to ensure good relations between
the parties in future. The Panchayat was the first instrument of civil
administration of justice under the Marathas.

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In every village there were Patil; and for every town there were
Shete Mahajan used to adjudicate cases of simple and minor nature.
The disputing parties were to sign an agreement regarding the abiding
of the rules and regulations of the panchayat. It was the panchayat to
study the case and pass its judgement impartially or without any bias
to any party. The Mamlatdar being a higher officer in the succession
of judicial administration should confirm the judgement.
In case the parties failed to settle their dispute amicably they can
move to the arbitrator and get satisfactory settlement for both the
parties.
The method of solving a problem in an indirect and unorthodox
manner is now recognized as the most important skill of a mediator.
The Mediation, Conciliation and Arbitration in their informal forms
are historically more ancient than the present day Anglo-Saxon
adversarial system of law.
Mediation gained great popularity amongst businessmen during the
pre-British Rule in India. The respected, impartial and prudent
businessmen used to resolve their disputes through mediation and
took turns to be readily available at business centers to mediate
disputes amongst the members.

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The tradition of community-level mediation was given legal sanction
in the british period with the establishment of Panchayati Raj.
It is widely believed that the village Panchayat constituting five wise
persons used to be recognized and accepted as conciliatory and/or
decision making authority.
Though many scholars have tried to describe the Panchayat’s
decision as the outcome of mediation, it had greater elements of
arbitration.
The dispute redressal function in the beginning of British Raj was
delegated to the native people for the reason the Britishers were
unaware of the local language and the local Laws. The Britishers also
had the fear that the act of the punishment of the members of the
native population could lead to agitation at any time. With the
induction of British judges trained in Common Law into the Indian
Judicial system, the Courts were reorganized and the entire working
of local Courts was reshaped
There was thus a conflict between the British value that required a
clear-cut decision and the Indian value that encouraged the parties ‗to
compromise their differences in some way‘.
The British system of justice, gradually became the prime justice
delivery system in India during the British regime of about 200 long
years.

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In the midst of all this, conventional mediation techniques were
forgotten and people placed their trust in British courts and their
justice delivery system.. Even after India‘s independence, the Indian
Judiciary has been the pride of the nation.
As societies grew in size and complexity, the informal decision-
making process became more complicated and it became necessary to
evolve formal justice systems.
In fact, societies could not grow larger in size and complexity without
first evolving a system of resolving disputes that could keep peace,
harmony and trade and commerce growing efficiently.
The Malimath committee:
In 1989, the Government of India, on the advice of then Chief
Justice of India, constituted Arrears Committee (189-1990) under the
Chairmanship of Justice Malimath, who was the Chief Justice of the
Kerala High Court. The terms of reference of the Committee were
interalia, to suggest ways and means, to reduce and control the arrears
in the High Courts and the subordinate Courts. The Malimath
Committee made a large number of useful recommendations like the
introduction of Conciliation procedure in writ matters and setting up
of Neighborhood Justice Centers with statutory status. The function of
such centres should be confined to resolving disputes by
reconciliation. The said committee while making a study on

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‗Alternative Modes and Forums for Dispute Resolution' endorsed the
recommendations made in the 124th and 129th Report of the Law
Commission to the effect that the lacuna in the law as it stands today,
arising out of the want of power in the Courts to compel the parties to
a private litigation to resort to arbitration or mediation, requires to be
filled up by necessary amendment being carried out. The Committee
stated that the conferment of such power on Courts would go a long
way resulting in reducing not only the burden of trial Courts but also
of the Revisional and Appellate Court
The enactment of the Arbitration and Conciliation act, 1996
provided a codified recognition to the arbitration and conciliation as
mechanism of alternate dispute resolution and maintain by virtue of
section 30 to refer the dispute for mediation on the event the arbitral
tribunal ensuring that there exists certain element of settlement
between disputing parties.
Section 89 of the code of civil procedure, 1908 brought into
existence by virtue of the code of civil procedure (amendment) act,
1999which came into effective from 1st
July 2002. As per section the
court encourages the settlement of dispute outside court by referring
the dispute to the arbitration, conciliation, lok adalat, and last but not
the least mediation. As per sub-section (2) of Section 89 as amended
when a dispute is referred to arbitration and conciliation, the
provisions of Arbitration and Conciliation Act, 1996 shall apply.

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When the Court refers the dispute to Lok Adalat for settlement by an
Institution or person, the Legal Services Authorities Act, 1987 alone
shall apply. It is only in the case of mediation that the Court itself
shall affect compromise and shall follow such procedure as may be
prescribed by Rules made by the High Court under Section 122 read
with Section 130 of the Code of Civil Procedure. It is said that this
was the first time that ADR mechanism was given statutory
recognition.
In India the statutory recognition to these mechanism of ADR
was given in late 90‘s decade by way of the code of civil procedure
(amendment) act, 1999. The amendment act introduces new section
that is section 89 and rule 1A, 1B, 1C in rule 1 of order X in the code
of civil procedure, 1908. Section 89 confers the jurisdiction on the
court to refer a dispute to an ADR method such as
(a) Arbitration;
(b) Conciliation;
(c) Judicial settlement together with settlement through Lok Adalat;
(d) Mediation
Whereas Rules 1 A to 1 C of Order X lay down the way in which the
jurisdiction is to be exercised by the court.
The said amendment became effective from 1st
July 2002. The
objective of Section 89 is to confirm that the court
makes an endeavour to facilitate out-of-court settlements through

29
ADR processes before the trial commences. This way the amendment
was instrumental in promoting ADR processes in India,
including mediation.
While the introduction of Section 89 was a landmark step the
constitutional validity of the amendment was raised and several
questions regarding the manner of referral by courts needed to be
clarified.
In Salem Advocate Bar Assn. v. Union of India (Salem I), the
Supreme Court upholding the constitutional validity of Section 89
established a committee (Salem I Committee) to, inter alia, draft rules
on mediation and create a report on effective case management to
reduce the burden on courts.
The elected chairman Hon‘ble Justice Jagannadha Rao of
committee published detailed reports which contained a guideline to
the courts on the manner of referring cases to mediation titled the
Civil Procedure Alternative Dispute Resolution (CPADR) Rules,
2003. The rule required various High Courts to provide necessary
training to its mediators.
On 9 April 2005, the then Chief Justice of India, Justice R.C.
Lahoti, gave further impetus to mediation in India by ordering the
establishment of the Mediation and Conciliation Project Committee
(MCPC). The purpose of the MCPC was to establish court-annexed
pilot mediation centres in several states, and ensure that
the mediation rules to be adopted in various court-

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annexed mediation centres were uniform, that training imparted to
mediators were consistent, and that mediation was implemented at a
national level. The MCPC was involved in training district judges
in mediation, who started judicial mediation by the end of August
2005. The training was subsequently extended to lawyers
rendering mediation services at court-annexed mediation centres.
Around the same time, the Salem I Committee filed its reports
on the issues identified in Salem I. Another Supreme Court Bench,
comprising Justice Y.K. Sabharwal, Justice D.M. Dharmadhikari, and
Justice Tarun Chatterjee, extensively reviewed the reports in Salem
Advocate Bar Assn. (2) v. Union of India (Salem 2).
In Salem 2, the Supreme Court directed the High Courts, the central
government, and state governments to file a progress report with
respect to adoption of the rules developed in the Salem I Committee
reports, within four months of the date of the judgment. Gradually,
several High Courts adopted versions of the Mediation Rules, 2003
and established court-annexed mediation centres as pilot programmes,
which were governed by the such rules.
Mediation and Conciliation Project Committee [constituted on 9th
April 2005]:
The committee is consisted of other judges of the Supreme
Court and High Court, Senior Advocates and Member Secretary of

31
NALSA. The first meeting of the said committee held on 11th July,
2005 wherein it was decided to initiate a pilot project of judicial
mediation in Tis Hazari Courts. The Mediation Centre at Tis Hazari
was inaugurated by Hon'ble Mr. Justice Y.K. Sabharwal, Judge,
Supreme Court of India/Chairman, NALSA on 24th
October, 2005.
The success of it led to the setting up of a mediation centre at
Karkardooma in 2006, eleven more Additional District Judges have
been trained as mediators during the month of June, 2006.
A Mediation Centre at Karkardooma Court was inaugurated by
Hon'ble Mr. Justice S.B. Sinha, Judge, Supreme Court of India on
5th
May, 2006. Subsequently four more Mediation Centers were
established at Rohini, Dwarka, Saket and Patiala House Courts
Complex.
Below is the Statistical report of the working of above mention
mediation centre at delhi as of September 2020:
Sr.
No.
Particulars Tis Hazari
Court, Delhi
Karkardooma
Court, Delhi
Rohini
Courts,
Delhi
Dwarka
Courts,
Delhi
Saket
Courts,
Delhi
Patiala House
Courts, Delhi
1 Total no. of cases
referred for
mediation
107524 60287 48688 42107 36179 11701

32
2 No. of cases
which were not fit
for mediation
13034 12029 9926 7353 6098 1896
3 No. of balance
cases
94481 42825 38762 34754 30081 9805
4 No. of cases
pending for
mediation
1056 709 320 287 311 302
5 No. of disposed
cases
93425 475549 38442 34467 29770 9503
6 No. of cases
settled
55995 36853 22896 243537 18341 5536
7 No. of cases not
settled
37430 10696 15546 10110 11429 3967
8 No. of connected
cases settled
14392 14481 7373 4931 4043 1489
Four regional Conferences were held by the MCPC in 2008 at
Banglore, Ranchi, Indore and Chandigarh. MCPC has been taking the
lead in evolving policy matters relating to the mediation. The
committee has decided that 40 hours training and 10 actual mediation
was essential for a mediator. It sanctioned a grant-in-aid by the
department of Legal Affairs for undertaking mediation training
programme, referral judges training programme, awareness
programme and training of trainers programme. With the above
grant-in-aid, the committee has conducted till March, 2010, 52
awareness programmes/ referral judges training programmes and 52
Mediation training programmes in various parts of country. About

33
869 persons have undergone 40 hours training. The committee is in
the process of finalizing a National Mediation Programme. Efforts are
also made to institutionalize its functions and to convert it as the apex
body of all the training programmes in the country.
China:
Mediation has been part of China‘s cultural fabric for thousands
of years. The People‘s Mediation Committees in china works on the
basis of age old societal principles that have long supported peaceful
co-existence.
Today, China uses five broad types of mediation. The most regularly
used types are:
People’s Mediation also known as Civil Mediation: it is conducted
by grassroots community mediators. This non-judicial mediation is
practice by people‘s mediation committees, Chinese law provides for
the establishment of citizen committees at the village or neighbour-
hood level.
Judicial Mediation: Judicial Mediation is conducted by judges. The
Civil Procedure Law 1982 of a china, mandates judicial mediation.
The law provides that judges must attempt mediation before

34
proceeding with a trial, and that any signed agreement resulting from
court-ordered mediation is binding both upon parties and the court.
Administrative Mediation: it is conducted by government officials
Arbitral Mediation: conducted by arbitral administrative bodies, and
Industry Mediation: conducted by respected associations within a
particular industry
United State of America:
Prior to the introduction of Uniform Mediation Act (‗UMA‘) in
the United States of America, the mediating process was regulated in
an inconsistent manner which led to considerable uncertainty and
confusion. The UMA helped to provide a uniform process and
ensured that the integral tenets of mediation, such as evidentiary
privilege and confidentiality, were accorded the same degree of
protection nationwide.
European countries:
Mediation techniques have been used in Europe for many
centuries. The institutionalisation of mediation as a mechanism of

35
dispute resolution in the European Member States, however, dates
back only a few decades, in some cases only a few years. European
businessmen have encouraged voluntary measures to resort to a
mediation.
CHAPTER 4:
INTERNATIONAL POSITION OF MEDIATION
WIPO Arbitration and Mediation Centre
Based in Geneva, Switzerland, with a further office in Singapore, the
WIPO Arbitration and Mediation Center was established in 1994 to

36
offer Alternative Dispute Resolution (ADR) options for the resolution
of international commercial disputes between private parties.
Developed by leading experts in cross-border dispute settlement, the
arbitration, mediation and expert determination procedures offered by
the Center are widely recognized as particularly appropriate for
technology, entertainment and other disputes involving intellectual
property. Since 2010 the Center has an office at Maxwell
Chambers in Singapore. An increasing number of cases are being
filed with the Center under the WIPO Arbitration, Expedited
Arbitration, Mediation and Expert Determination Rules. The subject
matter of these proceedings includes both contractual disputes (e.g.
patent and software licenses, trademark coexistence agreements,
distribution agreements for pharmaceutical products and research and
development agreements) and non-contractual disputes (e.g. patent
infringement), including court referrals.
WIPO disputes have involved parties based in different jurisdictions
including Austria, China, France, Germany, Hungary, India, Ireland,
Israel, Italy, Japan, the Netherlands, Panama, Spain, Switzerland, the
United Kingdom and the United States of America. The Center makes
available a general overview of its caseload as well as descriptive
examples of mediation and arbitration cases. The Center believes that
the quality and commitment of the neutrals are crucial to the
satisfactory resolution of each case. The Center assists parties in the
selection of mediators, arbitrators and experts from the Centers
database of over 2,000 neutrals with experience in dispute resolution

37
and specialized knowledge in intellectual property disputes. Where
necessary in individual cases, the Center will use its worldwide
contacts to identify additional candidates with the required
background. After appointment also, the Center monitors its cases in
terms of their time and cost effectiveness. The Center conducts a
number of events, training and workshops as well as free webinars on
mediation, arbitration and related topics. Sector-specific WIPO ADR
Services are produced by the Center and are continually adapted in
response to the rapid economic, technological and legal changes
within those sectors. The Center also collaborates with IP and
Copyright Offices, National Courts and with other IP and ADR
stakeholders to promote the use of ADR to resolve IP and technology
disputes. To offer time and cost efficient mediation, arbitration and
expert determination proceedings the Center makes available at no
cost to interested parties online case administration options, including
videoconferencing facilities and WIPO eADR. WIPO eADR allows
for secure filing, storing and retrieval of case- related submissions in a
web-based electronic docket, by parties, neutral(s) and the Center
from anywhere in the world. It also facilitates case management by
providing, in addition to the online docket, a case overview, time
tracking and finance information. While WIPO eADR is available
only to parties to a WIPO procedure, the Center, under certain
circumstances, makes available this facility in non-WIPO procedures.
For example, the Center provides a customized version of WIPO
eADR for use by the America‘s Cup Arbitration Panel of the 36th

38
edition of the America‘s Cup international yachting competition,
which will culminate in the final regattas in Auckland, New Zealand
in March 2021. In a letter to the WIPO Center, the ACAP members
and secretary note their positive experience managing ACAP cases to
date using WIPO eADR.
The Center has also focused significant resources on establishing an
operational and legal framework for the administration of disputes
relating to the Internet and electronic commerce. For example, today
the Center is recognized as the leading dispute resolution service
provider for disputes arising out of the abusive registration and use
of Internet domain names. In addition, the Center is frequently
consulted on other specialized dispute resolution services. An
independent and impartial body, the Center forms part of the World
Intellectual Property Organization.
Canada:
The Alternative Dispute Resolution Institute of Canada
(ADRIC) is recognized as Canada‘s pre eminent self-regulatory
professional Dispute Resolution organization. Commercial contracts
drafted by law firms of all sizes across Canada commonly contain a
clause indicating that any dispute that arises with respect to the
contract will be administered by ADR Canada, or one of its affiliates,
pursuant to the National Mediation Rules or the ADRIC Arbitration
Rules of the ADR Institute of Canada.

39
The National Mediation Rules provides a Model Dispute
Resolution Clause for Mediation and /or Arbitration.
―All disputes arising out of or in connection with this agreement, or in
respect of any legal relationship associated with or derived from this
agreement, shall be mediated pursuant to the National Mediation
Rules of the ADR Institute of Canada, Inc. The place of mediation
shall be [specify City and Province of Canada]. The language of the
mediation shall be English or French [specify language]‖.
ADR Institute of Canada’s Mediator codes of conduct:
The Code of Conduct for Mediators to every Mediator who is a
member of the ADR Institute of Canada, or any of its Regional
Affiliates, or who accepts from the Institute an appointment as
Mediator. The code mandates that every mediator coming from
different professional backgrounds must adhere to the code.
Power of ADR Institute:
The ADR Institute of Canada is empower to investigate alleged
breaches of the Code, and may temporarily suspend the membership
of concern Mediator pending the outcome of an investigation. It is the
objective of the Institute to ensure that complaints are investigated
fairly.
Definition of mediation under the code:

40
Para 2.1 (a) ―Mediation‖ means the use of an impartial third party to
assist the parties to resolve a dispute, but does not include an
arbitration
There is no specific regulation to regulated conduct of
Mediators in Ontario one of the thirteen provinces on Canada located
in Central Canada. There exist three professional organizations for
mediators which require members to abide by mediator codes of
conduct namely the Ontario Association of Family Mediators; Family
Dispute Resolution Institute of Ontario, The Alternative Dispute
Resolution Institute of Ontario (ADRIO) the former two provides
standards and codes of practice for family mediators whereas the later
promote a code of ethics and a code of conduct for mediators from a
wide variety of practice areas.
ADRIO is a provincial affiliate of the national Alternative
Dispute Resolution Institute of Canada. ADRIC‘s code of conduct is
in use across Canada in all its provincial affiliates.
The ADRIC Code
The most widely used mediator code of conduct is the one put forth
by ADRIC. The codes objectives are:
to provide guiding principles for the conduct of Mediators
to promote confidence in Mediation as a process for resolving
disputes

41
to provide protection for members of the public who use Mediators
who are members of the Institute
Family Codes of Practice
The OAFM code and FDRIO code are similar to the ADRIC code but
also oblige the mediator to perform a screen for domestic violence
and power imbalance.
World Trade Organisation (WTO)
The World Trade Organisation (WTO) has developed a dispute
resolution system of its own, which emphasizing the use of mediation
to settle disputes at almost all the stages of dispute resolution process.
Asian Mediation Association (AMA)
The Asian Mediation Association (AMA) was founded in 2002, with
a view to unifying the Asian mediation organizations to better
promote mediation and the use of it to settle disputes in Asia.
The United Nations Commission on International Trade
(UNCITRAL)
The United Nations Commission on International Trade
(UNICTRAL) published the UNCITRAL Conciliation Rules in 1980
and 20 years later the UNCITRAL Model Law on International
Commercial Conciliation, whipping up waves of mediation legislation
and a rise of mediation activities over the world. The above-

42
mentioned doings are the true reflections of the development of
mediation and the use of it to resolve disputes throughout the world.
CHAPTER 5
WHAT IS CONFLICT?
It is impossible to study the resolution of conflict without even
knowing what is conflict?
Conflict is an integral part of human life. Every individual be he
may be child an adult or elder is conflicting at some point. Conflict
can come from an opposing idea. Your disagreement on ground line

43
form by your parents or difference of opinion between you and your
colleague are nothing but a part of conflict. Conflict can be cause due
to several reasons it can cause if one act against our desire, or if our
opinions contradicts with the other person. It is often cause through
inaccurate or unchecked facts and information. Such Conflict,
disharmony and misunderstanding which lead to differences and
disputes, are the manifestations of negative or ugly side of human
feelings and frailties such as
(i) greed and avarice;
(ii) ego and pride;
(iii) jealousy and intolerance;
(iv) anger and hate; and
(v) prolongation and indecisiveness.
According to American psychologist Daniel Katz, there are three
primary causes of conflict:
Economic conflict is caused on account of paucity of resources.
The groups or Individual involved then get into a conflict to attain the
maximum possible share of these resources, thus bringing forth
hostile behaviours among those involved

44
Value conflict is occasioned by varied preferences and ideologies that
people carry as their principles. They get demonstrated in cases where
separate parties have separate sets of beliefs that they assert
aggressively
Power conflict occurs when the parties involved intend to maximize
the influence they wield in the social settings. Such a situation can
arise among individuals, groups or even nations
CHAPTER 6
WHAT IS BEST METHOD OF CONFLICT RESOLUTION
AND OTHER METHODS
It is true that, nothing is more satisfying and more soothing than a cordially
negotiated amicable settlement because, it protects and preserves personal and
business secrets, relationships and reputations that might otherwise be impaired
by the adversarial process.

45
The process of negotiation does not fall either in the concept of
‗arbitration‘ or ‗conciliation‘. Strictly, negotiation by itself, is not an alternative
dispute resolution procedure because it is a bipartite process and does not
require a third party to facilitate and promote the settlement, where as
alternative dispute resolution methods essentially involves a third person for
facilitating the resolution of the dispute by settlement.
However, it is the most fundamental way of dispute resolution and is
generally treated as one of the main components of alternative dispute
resolution processes. It is only when the process of negotiation does not
succeed, that it transforms into alternative dispute resolution method by
intercession of a neutral and more structured process framework.
Negotiation is the simplest and most purposeful method of settling
commercial disputes between the parties. The disputants themselves are in the
best position to know the strengths and weaknesses of their respective cases. If
there is any need of advice felt by them on such points of difficulty or
controversy, the disputed parties can seek the needed advice from the competent
persons or from the experts of such field. The process of Negotiation thus
enables the parties to iron out their differences and dispute by direct face-to-face
interaction. It avoids unnecessary acrimony, anguish and expense. The process
of negotiation can help in healing the wounds and thus remedies pains caused
by inter – party frictions. Thus, Negotiation can take place in business, non-
profit organisations, Government branches, legal proceedings, among nations
and in personal situations such as marriage, divorce and parenting.
PROCEDURE:
Negotiation is a non-binding procedure in which discussions between the
parties are initiated without the intervention of any third party with the object of
arriving at a negotiated settlement of the dispute. It is not confined to the core

46
points of the dispute alone. In order to facilitating overall settlement of the
dispute, parties can introduce other issues as trade-offs. Negotiation is an
interaction of influences. Such interactions, for example, include the process of
resolving disputes, agreeing upon courses of action, bargaining for individual or
collective advantage and of crafting outcomes to satisfy various interests.
The process of negotiation gives the parties an option to go over a wide
range of issues. In business disputes, the disputed parties try to reach a
settlement by adopting a give and take process, understanding each other‘s point
of view, as they best know the strength and weakness of their respective cases
and the parties have their market reputation at stake. This gives a greater chance
of reaching an amicable settlement by negotiations. Negotiation involves three
basic elements: process, behaviour and substance. The ‗process‘ refers to how
the parties negotiate, the context of the negotiations, the parties to the
negotiations, the tactics used by the parties, and the sequence and stages in
which all of these play out. ‗Behaviour‘ to the relationships among these parties,
the communication between them and the styles they adopt. The ‗substance‘
refers to what the parties negotiate over: the agenda, the issues in their
respective
Positions and more helpfully in interests of the parties, the options, and the
agreements reached at the end by them. Skilled negotiators may use a variety of
tactics ranging from a straightforward presentation of demands or setting of
preconditions to more deceptive approaches such as intimidation and salami
tactics may also play a part in arriving at the outcome of negotiations.
The key to Negotiation is information. Emotions have the potential to
play either a positive or a negative role in negotiation. During negotiations, the
decision as to whether or not settle rests in part on emotional factors. Negative
emotions can cause intense and even irrational behaviour, and can cause
conflicts to escalate and negotiations to break down, while positive emotions

47
facilitate reaching an agreement and help to maximize joint gains. Negative
affect has detrimental effects on various stages in the negotiation process.
Although various negative emotions affect negotiation outcomes. Angry
negotiators plan to use more competitive strategies and to cooperate less, even
before the negotiation starts. These competitive strategies are related to reduce
joint outcomes. During negotiations, anger disrupts the process by reducing the
level of trust, clouding parties' judgment, narrowing parties' focus of attention
and changing their central goal from reaching agreement to retaliating against
the other side. Angry negotiators can pay less attention to opponent‘s interests
and can be less accurate in judging their interests, thus achieve lower joint
gains. Moreover, because anger makes negotiators more self-centred in their
preferences, it increases the likelihood that they will reject profitable offers.
Anger does not help in achieving negotiation goals either: it reduces joint
gains and does not help to boost personal gains, as angry negotiators do not
succeed in claiming more for them. Moreover, negative emotions leads to
acceptance of settlements that are not in the positive utility function but rather
have a negative utility. However, expression of negative emotions during
Negotiation can sometimes be beneficial: legitimately expressed anger can
Be an effective way to show one's commitment, sincerity, and needs.
ADVANTAGES
A negotiated settlement is conducive in preserving relations between the
parties as also their market reputation, which justifies the preference of the
process of negotiation over other alternative dispute resolution methods. The
process of negotiation and the negotiated settlement is possible at any time,
even after the other methods of dispute resolution have been initiated411.

48
The negotiated settlement is based on bipartite agreements, and as such,
is superior to any procedure involving third party intervention in matters that
essentially concern the parties. As against ‗arbitration‘ and ‗conciliation‘, the
process of negotiation is most flexible and informal, and provides ample scope
for the parties to direct the proceedings suited to the facts and circumstances of
the case. For instance, parties are free to choose the location, timing, agenda,
subject matter and the participants. It is quick, inexpensive, private and less
cumbersome in comparison to other dispute resolution methods. It is a voluntary
and non-binding process, wherein the parties control the result and the
procedure for coming to an amicable agreement.
The main advantage of negotiation can be said to be that, a settlement by
way of negotiation is always possible, even after other method of resolving the
dispute have been set in motion or having been set in motion, have not resulted
in an amicable settlement of the disputes.
CHAPTER 7
COURT REFERRED MEDIATION AND PRIVATE
MEDIATION
Court annexed mediation and its advantages:

49
In Court-Annexed Mediation the mediation services are
provided by the court as a part and parcel of the same judicial system
as against Court-Referred Mediation, wherein the court merely refers
the matter to a mediator.
One feature of court-annexed mediation is that the judges,
lawyers and litigants become participants therein, thereby giving them
a feeling that negotiated settlement is achieved by all the three actors
in the justice delivery system. When a judge refers a case to the court-
annexed mediation service, keeping overall supervision on the
process, no one feels that the system abandons the case. The Judge
refers the case to a mediator within the system. The same lawyers
who appear in a case retain their briefs and continue to represent their
clients before the mediators within the same set-up. The litigants are
given an opportunity to play their own participatory role in the
resolution of disputes. This also creates public acceptance for the
process as the same time-tested court system, which has acquired
public confidence because of integrity and impartiality, retains its
control and provides an additional service.
In court-annexed mediation, the court is the central institution
for resolution of disputes. Where ADR procedures are overseen by the
court, at least in those cases which are referred through courts, the
effort of dispensing justice can become well-coordinated.
If reference to mediation is made by the judge to the court annexed
mediation services, the mediation process will become more
expeditious and harmonized. It will also facilitate the movement of

50
the case between the court and the mediator faster and purposeful.
Again, it will facilitate reference of some issues to mediation leaving
others for trial in appropriate cases. Court annexed mediation will
give a feeling that court‘s own interest in reducing its caseload to
manageable level is furthered by mediation and therefore reference to
mediation will be a willing reference. Court annexed mediation will
thus provide additional tool by the same system providing continuity
to the process, and above all, court will remain a central institution for
the system. This will also establish a public-private partnership
between the court and the community. A popular feeling that court
works hand-in-hand with mediation facility will produce satisfactory
and faster settlements.
Reference to mediation:
As per provision of Order X Rules 1-A of the code of civil
procedure, 1908 after recording admission or denial of documents, the
Court is under an obligation to direct the parties to opt for any of the
four modes of alternative dispute resolution including mediation. The
request for reference of a dispute to mediation can be made by both
the parties.
A wide nature of disputes, including Matrimonial, Labour,
Motor Accident Claims, eviction matters between landlord and
tenants, Complaints under Section 138 of the Negotiable Instrument
Act, 1881; the Petitions under Section 125 Criminal Procedure Code

51
1973; or any compoundable offence can be referred for mediation. If
only one of the parties makes a request and the other party is not
averse to the idea of mediation, the dispute can still be referred.
Any court can otherwise make a reference of a dispute as
provided under Section 89 of Code of Civil Procedure. Lawyers can
assist the parties in the mediation proceedings. Rather, it has been
found that wherever the parties are assisted by their advocates, a
settlement is arrived at a bit early, for the lawyers can explain the
weakness and strength of their respective cases and the time factor
which might be taken in litigation. Since the proceedings before a
mediator are informal the parties can even bring any of their relations
to assist them.
The use of mediation for settlement of dispute is growing as the
progress graph of existing litigation and arbitration system is sloping
downward. People prefer alternate mode for dispute resolution
because they are unsatisfied with process and outcome of litigation
and arbitration. The procedure in the former has become more and
more complex and stereotypical. Submission of evidence takes too
long a time and needs too much money. Lawyers ‗debate is
excessively abused. Justice is difficult to access. It has become too
lengthy and costly. To a certain extent, the operation of the courts is
running against ‗Natural Justice ‗and ‗Due Process‘.

52
The Arbitration is following what the courts are wrongly doing.
The arbitration process has reduced to as complex as litigation. The
time-span of arbitration is getting longer and longer than litigation
and the cost of doing arbitration is much more expensive than
litigation.
People have realised that the mediation is just what they wanted
it is quicker, simpler and so much less expensive than that of
arbitration and litigation. The features of mediation as ―informal
process‖ have resulted into speedy solution which further results into
inexpensiveness. This is because for engaging an arbitrator [in
arbitration] advocate [litigation] and mediator [in mediation] you may
need almost same portion of fee but as the process in mediation wind
up much early compare to former two it is pocket friendly.
The solution in mediation is not simply ‗black and white‘, and
there is no clear winner and loser because there is no time to
investigate who is legally ‗wrong ‗or ‗right‘. The time necessary to
get to the point of a full analytical resolution of complex commercial
disputes by legalistic procedure is not worth the ‗Money‘. A
successful mediation also means that usually both sides instead of
only one or neither, come out of the process with a measure of
satisfaction (win-win).

53
CHAPTER 8
VARIOUS LAWS WHERE MEDIATION PROVISION IS
PRESCRIBED
The Industrial Disputes Act, 1947 –

54
The industrial dispute act was enacted with view to provide
provision for the purpose of investigation and settlement of industrial
dispute and other incidental provision thereto.
Section 3 of the act provides for the constitution of work
committee which shall undertake to promote measures and preserving
good relation and comment upon the common interest between
employer and workmen. This was an attempt to tackle the dispute at
the initial stage only.
Section 4 of the Act falling under chapter II with the title
authorities under this act assigns conciliators the responsibility to
mediate and settle industrial disputes.
The said section mandates the appropriate government to
appoint such number of person as it may deem fit for the role of
conciliators. The said conciliator is entrusted with duty to mediate and
settling the industrial dispute. The appointment of such conciliator
can be either permanent basis or for a limited period.
Further section 5 of the act mandates the establishment of
conciliation board. Other provision with respect to this can be found
in section 10 of the act, where it maintained that the appropriate
government may if it deemed fit can refer the industrial dispute to the
board with a view to promote settlement thereof. Sections 11, 12, 18
provide provisions such as procedure for conciliation, duties of

55
conciliation officer and board, and such person to whom the
conciliation award may be binding respectively.
It is, however, relevant to note that the conciliation machinery
under the industrial Disputes Act has been working well for the past
several decades in resolving disputes among the workmen and
management in the Industrial and commercial sector.
The Code of Civil Procedure, 1908 –
The concept of Alternative Dispute Resolution was first
recognised in country by virtue of section 89 of the code of civil
procedure, 1908. . In 2002, an amendment to the Code of Civil
Procedure, 1908 (CPC) was brought in which provided for the
reference of all pending court cases to mediation. The amendment
also prescribes mediation for all family and personal matters due to
their sensitive nature. Section 89 read with Order X Rule 1A provided
for reference of cases pending in the courts to ADR. It talks about
settlement of dispute outside the court.
It includes mediation as a mean to resolve the dispute outside
court along with the Arbitration, Conciliation, and Judicial
settlement including settlement through Lok Adalat. Under the
provision of such section the power has been construed upon the court
to resort the matter to mediation if it appears to it that there is
existence of some element of settlement. In addition, Order XXXIIA
of the CPC recommends mediation for familial/personal relationships,

56
as the ordinary judicial procedure is not ideally suited to the sensitive
area of personal relationships. Though many courts in India now have
mediation centres, there is no accurate data available to show that this
provision has been utilised successfully.
PART V SPECIAL PROCEEDINGS ARBITRATION
89. Settlement of disputes outside the Court.—
(1) Where it appears to the Court that there exist elements of a
settlement which may be acceptable to the parties, the Court shall
formulate the terms of settlement and give them to the parties for their
observations and after receiving the observations of the parties, the
Court may reformulate the terms of a possible settlement and refer the
same for
(a) Arbitration;
(b) Conciliation;
(c) Judicial settlement including settlement through Lok Adalat;
(d) Mediation.
(2) Were a dispute has been referred—
(a) For arbitration or conciliation, the provisions of the
Arbitration and Conciliation Act, 1996 (26 of 1996) shall apply as if

57
the proceedings for arbitration or conciliation were referred for
settlement under the provisions of that Act;
(b) to Lok Adalat, the Court shall refer the same to the Lok
Adalat in accordance with the provisions of sub-section (1) of section
20 of the Legal Services Authority Act, 1987 (39 of 1987) and all
other provisions of that Act shall .apply in respect of the dispute so
referred to the Lok Adalat;
(c) for judicial settlement, the Court shall refer the same to a
suitable institution or person and such institution or person shall be
deemed to be a Lok Adalat and all the provisions of the Legal
Services Authority Act, 1987 (39 of 1987) shall apply as if the dispute
were referred to a Lok Adalat under the provisions of that Act;
(d) For mediation, the Court shall affect a compromise between
the parties and shall follow such procedure as may be prescribed.]
SALEM BAR ASSOCIATION CASE AND THE DRAFT ADR
AND MEDIATION RULES, 2003- [whole citation of case]
The Hon'ble Supreme Court of India has in the landmark
decision of Salem Advocate Bar Association, Tamil Nadu Vs Union
of India case, directed that all Courts shall direct parties to alternative
dispute resolution methods like arbitration, conciliation, judicial
settlement or mediation.

58
The draft "Civil Procedure Alternative Dispute Resolution and
Mediation Rules 2003" was also considered by the Supreme Court,
for enactment by respective High Courts. Direction was issued to all
High Courts, Central Government and State Governments for
expeditious follow-up action. The Courts can refer the case to
mediation under Section 89, 1 (d) and 2 (d).
When the Court decides to refer the case to mediation, ―the
Court shall effect a compromise between the parties and shall follow
such procedure as may be prescribed‖. This provision is amenable to
the interpretation that it is for the Court itself to ―effect a
compromise‖ and follow the procedure prescribed for the purpose. If
the Court for one reason or the other cannot itself effect a
compromise, the only option it would have is to refer the parties to
conciliation etc.
In a historic judgment in Salem Bar Association case, the
Supreme Court directed the constitution of a committee to frame draft
rules for mediation under Section 89(2) (d) of the CPC.
Consequently, the Committee presided over by Justice M.
Jagannadha Rao, Chairman of the Law Commission of India prepared
a comprehensive code for the regulation of ADR process initiated
under Section 89 of CPC.
The Companies Act, 2013 –

59
The chapter XXVIII with head special courts covers section 442
which further deal with provision of mediation and conciliation panel.
Section 442 of the companies act, 2013 mandates the central
government to maintain a panel of experts to be called as the
Mediation and Conciliation panel.
It is with the party to make an application before the central
government or tribunal or the appellate tribunal before the concern
proceeding is pending. Such an application can be made to refer the
matter pertaining to pending proceeding to the mediation and
conciliation panel
However it is also provided under the said section that the
central government /tribunal/appellate tribunal as the case may be can
even take sou moto action to refer the matter to such panel in case it
deemed fit. The section has mandated the panel to dispose the matter
within three months from the date of reference also is mandated to
forward it recommendations to the central government or the Tribunal
or the Appellate tribunal. Likewise an option is given to the
aggrieved parties file an objection as against such recommendations
to the central government, tribunal or appellate tribunal as the case
may be.
THE COMPANIES (MEDIATION AND CONCILIATION)
RULES, 2016

60
The central government in exercising its power under section
442 read with section 469 [power of central government to make
rules] of the companies act, 2013 made an arrangement and thereby
the companies (mediation and conciliation) rules, 2016 came into
existence.
Wherein, by virtue of rule 3 a duty of managing panel of experts have
been entrusted upon the Regional director in the ministry of corporate
affairs. Likewise rule 4 provides for the qualification of empanelment.
Further are the qualifications for the person to be appointed in the
panel.
a) The judge of the supreme court in India
b) The judge of the high courts
c) A District and sessions judge
d) Member or a registrar of a tribunal constituted at the National
level under any law for the time being in force
e) An officer in the Indian Legal Service with fifteen years
experience
f) A qualified legal practitioner for not less than ten years.
g) Person who has been a professional for at least fifteen years of
continuous practice as chartered accountant or cost accountant
or company secretary
h) Member or president of any state consumer forum
i) Expert in mediation or conciliation who has successfully
undergone training in mediation or conciliation.

61
The rule going further has also given the provision as to the
appointment of mediator and conciliator wherein a liberty is given to
the parties to agree on sole mediator or conciliator. However where
there are more than two parties and it is difficult to agree on such sole
mediator and conciliator the authority is given to the central
government or the tribunal or appellate tribunal who is ask such
parties to nominate them [mediator and conciliator] thereby
appointing mediator or conciliator. Such appointed mediator or
conciliator is bound by the duty to disclose information which are
likely to give justifiable doubt to theirs impartiality and independence
in work. The role of mediator is limited to facilitate voluntary
resolution of the dispute by the parties, and communicate the view of
each party to the other, assist them in identifying issues, reducing
misunderstandings, clarifying priorities, exploring areas of
compromise and generating options in an attempt to resolve the
dispute, emphasising that it is the responsibility of the parties to take
decision which affect them. The mediator and conciliator can imposed
terms and condition of settlement only if the parties have consented to
it. The rule has prohibited certain matters which are not to be referred
to such panel.
List of matters not to be referred to mediation and conciliation
panel
1. The matters relating to proceedings in respect of inspection or
investigation under Chapter XIV of the companies act 2013

62
2. The matters which relate to defaults or offences for which
applications for compounding have been made by one or
more parties.
3. Cases involving serious and specific allegations of fraud,
fabrication of documents forgery, impersonation, coercion
etc.
4. Cases involving prosecution for criminal and non-
compoundable offences.
5. Cases which involve public interest or interest of numerous
persons who are not parties before the Central Government or
the Tribunal or the Appellate Tribunal as the case may be
The Commercial Courts Act, 2015
The chapter III-A which brought in by way of amendment act 2018
effective from 3rd
May 2018 inserted a provision of ―Pre-institution
Mediation under section 12-A in the act. The section has mandated
the parties which are not contemplating on an urgent interim relief
under this act, to go for mediation. The amendment allows litigation
only if the parties meaningfully engage in mediation proceedings and
still fail to resolve the matter.
This way the legislature has attempted to encourage mediation
and that should be the priority of every party who is not pressing for
an interim relief by the courts. The central government via
notification dated 3rd
July 2018 empower the authorities prescribed
under the Legal Service Authorities act, 1987 to authorise the pre-

63
institution mediation under this act. The said notification
contemplates that the process of such pre-institution mediation shall
be completed within the period of three months. However such period
shall be extended with the consent of parties. This act going further
has made the settlement under such mediation binding and shall have
same status as of an arbitral award under subsection (4) of section 30
of the arbitration and conciliation act, 1996.
The Real Estate (Regulation and Development) Act, 2016 –
Section 32(g) provides for the amicable settlement of disputes
through an established dispute resolution forum.
Chapter V: Real Estate Regulatory Authority
Section 20 entrusted the appropriate government with a duty to
establish authority within one year of commencement of this act. Such
authority to be known as Real Estate Regulatory Authority
As per section 21 the authority shall consist of chairperson and whole-
time members not less than two appointed by appropriate
government.
Section 25: administrative powers of chairperson [as below]
o Powers of general superintendence and directions in the conduct
of the affairs of Authority
o to presiding over the meetings of the Authority,

64
o to exercise and discharge prescribe administrative powers and
functions of authority
Section 32 deal with the function of authority in order to promote the
real estate sector
Wherein as per subsection (g) the authority may make
recommendation to appropriate on measures to facilitate amicable
conciliation of disputes between the promoters and the allottees
through dispute settlement forums set up by the consumer or promoter
associations.
The Hindu Marriage Act, 1955 & the Family Courts Act, 1984–
Even prior to the existence of Section 89 of the Civil Procedure
Code (CPC), there were various provisions that gave the power to the
courts to refer disputes to mediation, which sadly have not really been
utilized. Such provisions, inter alia, are in the Hindu Marriage Act,
1955 and the Family Courts Act 1984.
Section 23(2) of the Hindu Marriage Act, 1955 mandates the duty
on the court that before granting relief under this Act, the Court shall
in the first instance, make an endeavour to bring about reconciliation
between the parties, where it is possible according to nature and
circumstances of the case. For the purpose of reconciliation the Court
may adjourn the proceeding for a reasonable period and refer the
matter to a person nominated by the court or parties with the direction
to report to the court as to the result of the reconciliation.

65
The legislature on emphasising on amicable settlement of dispute
made provision under chapter II [family courts] particularly in section
4 dealing with the appointment of judges for family courts, that the
appointed judges shall committed to the need to protect and preserve
the institution of marriage and to promote the welfare of children and
qualified by reason of their experience and expertise to promote the
settlement of disputes by conciliation. Section 9 of the lays down the
duty of the family Court to assist and persuade the parties, at first
instance, in arriving at a settlement in respect of subject matter. The
Family Court has also been conferred with the power to adjourn the
proceedings for any reasonable period to enable attempts to be made
to effect settlement if there is a reasonable possibility.
As the courts have stated before, disputes relating to marriage and
divorce are more likely to be referred to and settled by mediation so
the provisions under these Acts are in consonance with the same.
In K. Srinivas Rao v. D.A. Deep the Supreme Court discussed the
idea of pre-litigation mediation in the context of family disputes. In
this case, the husband prayed for a divorce decree on grounds of
mental cruelty as the wife had filed a false criminal complaint against
him and his family. The Court, while granting the husband relief,
placed great importance on the benefits of pre-litigation mediation as
a form of dispute settlement, observing that in the present case there
would be no requirement for a divorce had the parties approached
a mediation centre prior to pursuing the suit. The Court acknowledged

66
that often disputes such as these arise as a result of trivial reasons that
are exacerbated by pursuing litigation. The oppositional ‗winner takes
all‘ set-up is not beneficial for the relationship between parties,
particularly in the context of matrimonial disputes.
The Consumer Protection Act, 2019 –
The new rendition of the Consumer Protection Act dedicates an
entire Chapter (chapter V) to the resolution of consumer disputes
through mediation first before approaching a consumer redressal
agency. The act has defined the process of mediation as a process by
which a mediator mediates the consumer disputes. Section 37 of the
act entrust a duty upon the district commission to refer the dispute for
mediation if as per him there exists element of settlement within five
days. Such mediation shall be conducted in accordance with the
provision of chapter V of the act.
The act has encouraged mediation by providing chapter V
containing the provision of establishment of mediation cell by state
government, which is to be attached to east district commission and
state commission of that state.
The Consumer Mediation Cell:
According to section 74 of the act the consumer mediation cell
have to maintain a list of empanelled mediators, cases handled by the
cell, the record of proceedings etc. such mediation is to be conducted
mediation cell and mediator shall be guided by the principle of natural

67
justice. Pursuant to such mediation if an agreement is reached
between the parties then the mediator shall prepare a settlement report
along with the sign agreement which is to be forwarded to the district
commission or state commission or national commission as the case
may be. The concerned commission then passed an order on the basis
of it, within seven days of the receipt of that report.
The Consumer Protection (Mediation) Rules, 2020
The central government in exercise of its powers under sub-
section (1) and clauses (r) and (zf) of sub-section (2) of section 101 of
the Consumer Protection Act, 2019 have passed the said consumer
protection (mediation) rules, 2020 which came into effect on 20th
July, 2020. The said rule prohibits certain matters which are not to be
referred to the consumer mediation cell listed out below.
a) The matters relating to proceedings in respect of medical
negligence resulting in grievous injury or death;
b) The matters which relate to defaults or offences for which
applications for compounding of offences have been made by
one or more parties;
c) The cases involving serious and specific allegations of fraud,
fabrication of documents, forgery, impersonation, coercion;
d) The cases relating to prosecution for criminal and non-
compoundable offences;

68
e) The cases which involve public interest or the interest of
numerous persons who are not parties before the Commission;
Going further the rules have also made a provision of refund of
fees where the complainant is entitled to receive full amount of
application fee paid in respect of such complaint, if a settlement is
reached between such parties. Rule 7 provides that such settlement
agreement arrived between the parties cannot be discharge on the
event of death any party rather that shall be enforceable by or against
the legal representative
The Consumer Protection (Mediation) Regulations, 2020
The National Consumer Disputes Redressal Commission, with
the previous approval of the Central Government made the consumer
protection (mediation) regulations, 2020 by exercising its power
under section 103 of the act. The regulation 3 provides a list of
eligible person for the role of mediator in the mediation cell, that
includes the following:
i. retired Judges of Supreme Court of India;
ii. retired Judges of the High Courts;
iii. retired Members of a Consumer Commission;
iv. retired District and Session Judges, retired Additional District
and Session Judges or other retired Members of the Higher
Judicial Services of a State;

69
v. retired Judicial officers, having experience of not less than ten
years;
vi. an advocate with a minimum experience of ten years at Bar;
vii. the mediators empanelled with the Mediation Cell of the
Supreme Court of India, High Court or a District Court;
viii. a person having experience of at least five years in mediation or
conciliation;
ix. experts or other professionals with at least fifteen years‘
experience or retired senior bureaucrats or retired executives
The regulations mandate the mediator to attend the training experts as
may be nominated by the Mediation Cell.

70
CHAPTER 9
VARIOUS LAWS IN INDIA WHERE CONCILIATION IS
PRESCRIBED
The Arbitration and Conciliation Act, 1996
The Arbitration and conciliation act, 1996 is the full fledge
legislation governing the ADR mechanism such as Arbitration and
conciliation. The Arbitration and Conciliation Act, 1996 repealed the
Arbitration Act of 1940, the Arbitration (Protocol and Convention)
Act of 1937 and the Foreign Awards (Recognition and Enforcement)
Act of 1961.
The 1940 Act had a number of drawbacks, including provisions
for Court intervention at a number of stages in the proceedings, which
resulted in delays. The 1996 Act remedied these procedural defects. It
was enacted to cover comprehensively international commercial
arbitration and conciliation as well as domestic arbitration and
conciliation. The basic features of the 1996 Act can be summarised
as, it provides for the party autonomy, minimum judicial intervention
and maximum judicial support.
[Reference of section]
Section 30 of the Arbitration and Conciliation Act, 1996
encourages the resolution of dispute by mediation in case arbitral
tribunal find certain element of settlement between disputing parties.

71
The ‗Conciliator‘ under the Arbitration and Conciliation Act,
1996, apart from assisting the parties to reach a settlement, is also
permitted to make ―proposals for a settlement‖ and ―formulate the
terms of a possible settlement‖ or ―reformulate the terms‖.
‗Conciliation‘, is a procedure like mediation but the third party called
the conciliator, takes a more interventionist role in bringing the two
parties together and in suggesting possible solutions to help the
disputed parties to reach a settlement. The difference between the
process of mediation and conciliation 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.
Under Section 30 and Section 64(1) and Section 73(1) of the
Arbitration and Conciliation Act, 1996, the conciliator has a greater or
pro-active role in making proposals for a settlement or formulating
and reformulating the terms of a settlement
.
The Farmers’ Produce Trade and Commerce (Promotion and
Facilitation) Act, 2020
The recent enactment brought in the name of agriculture reform
2020 which deemed to be in effect from 5th
June 2020, have contained
in chapter III the provision of disputes resolution wherein the act
encourage the disputing parties such as the farmers and traders to seek

72
a mutually acceptable solution through conciliation by filing an
application to the Sub-Divisional Magistrate who shall refer such
dispute to a Conciliation Board to be appointed by him for facilitating
the binding settlement of the dispute.
The Farmers’ Produce Trade and Commerce (Promotion and
Facilitation) Rules, 2020
This rule is made by the central government in exercise of the
powers conferred by section 17 of the Farmers‘ Produce Trade and
Commerce (Promotion and Facilitation) Act, 2020.
Chapter III of the rule dealing with Disputes Settlement
Mechanism Pertaining to Farmers and Penalties encourages the
settlement through conciliation board which shall be appointed by the
Sub-Divisional Magistrate within fourteen of days of receiving an
application from parties for conciliation. The rule has also provided a
procedure to be followed by such board and time limit for completion
of conciliation process that is thirty days.

73
CHAPTER 10
THE CIVIL PROCEDURE ALTERNATIVE DISPUTE
RESOLUTION AND MEDIATION RULES, 2003
The Civil Procedure Alternative Dispute Resolution and Mediation
Rules, 2003 [who brought this rules] [hierarchy of such rules]
It consists of two parts:
Part I: ADR Rules 2003 consisting of ―the procedure to be followed
by the parties and the Court in the matter of choosing the particular
method of ADR‖ and
Part II: Mediation Rules, 2003 consisting of ―draft rules of mediation
under section 89(2) (d) of the Code of Civil Procedure‖. It is to be
noted that Rule 2(b), proviso clearly states that the Court in the
exercise of its powers under Section 89(1) (a) to (d) read with Rule
1A of Order X ―shall not refer any dispute to arbitration etc without
the written consent of all the parties to the suit" and Rule 4 calls this
the exercise of the option by the parties. But, under Rule 5 (f) and (g),
the Court is given the power to refer the parties under certain
circumstances to alternative dispute redressal methods even if all the
parties do not agree. This is in consonance with the letter and spirit of
Section 89 of CPC. Rule 4 also requires the Court to do a sort of
counselling in enabling the parties to choose the correct form of
alternative dispute redressal method depending on the nature of the
case and the relationship between the parties that needs to be

74
preserved. Rule 4(iv) may be reformulated to say, ―Where parties are
interested in reaching a compromise which might lead to the final
settlement‖. Unlike the Arbitration and Conciliation Act, 1996, Rule 4
gives a workable definition of the terms arbitration, conciliation,
mediation and judicial settlement. Under Rule 6(2), if the alternative
dispute redressal method does not succeed and the case is referred
back to the Court, the Court shall proceed with the case in accordance
with law. A welcome feature of these Rules is that they provide for a
detailed scheme for the conduct of training courses in alternative
dispute redressal methods for lawyers and judicial officers under the
auspices of the High Courts and the District Courts, and the
preparation of a detailed manual of procedure for alternative dispute
redressal methods. The manual will describe various methods of
alternative dispute redressal mechanisms, the choice of a particular
method, the suitability of a method for any particular type of dispute
etc. The Manual shall particularly deal with the role of conciliators
and mediators in disputes which are commercial or domestic in nature
or which relate to matrimonial, maintenance and child custody cases.
With a view to enhancing awareness of alternative dispute redressal
procedures and for imparting training in them, the Rules provide for
the conduct of seminars and workshops periodically (Rule 7). Thus,
these provisions prepared a blueprint for the building up of a body of
trained professionals who are sensitised to efficiently handle cases in
future, as that task requires specialized training and expertise of a
high order.

75
Part II of the Rules contain a carefully prepared scheme for the
appointment of mediators, empanelling of mediators, their
qualifications and disqualifications and the proper selection of the
mediator to suit a particular case etc. They also contain provisions
regarding the actual conduct of mediation that, mutatis mutandi, apply
some of the provisions of the 1996 Act relating to conciliation. A
notable feature of these provisions is that Rule 19 imposes an
obligation on the part of the parties to make an effort in good faith to
arrive at a settlement, and this is intended to prevent the whole
process from being reduced to a sham. The Rules also deal with cases
where the parties succeed in arriving at a solution through the
alternative dispute redressal processes only regarding some of the
issues and not all. In such cases, the Court may incorporate the partial
settlement in its judgment and decide the other issues according to
law. Very importantly, the Rules also lay down a code of ethics to be
followed by the mediator in the proper conduct of the proceedings so
as to arrive at a fair and just settlement in an impartial and dignified
manner so as to instil confidence in the parties in himself and the
credibility of the process in general.

76
CHAPTER 11
BEST WAY TO NEGOTIATE DO’S AND DON’TS
No matter the complexity or size of the deal, there are certain
Do‘s and Don‘ts that you should follow prior, during and following
the negotiation. Your goal should be to reach a compromise that is
fair and equitable to both parties. Remember–if you close the deal
both parties will be partners. Negotiate a win-win outcome.
Do’s
1. Prepare before beginning the negotiation. A lack of preparation can
cost you money and credibility.
2. Determine your interests and those of the other party. Instead of
thinking of the person you will negotiate with as an adversary think of
them as your partner in this deal. Be sure to separate their positions or
demands from their interests.
3. Analyze the options that each of you has available. These should be
written down along with their ―pros and cons‖ and then reviewed
carefully.
4. Determine both parties walk away position and BATNA (Best
Alternative to a Negotiated Agreement).
5. Think through what information the negotiator has about you and
your company. Example: length of time conducting business together,
successes and failures, prior negotiations etc.

77
6. Define the trades or concessions you are willing to offer. List them in
order of preference.
7. Remember to stay calm, cool and collected. Keep the emotional
advantage. Focus on interests and issues not personalities or words
used.
8. Document everything in writing immediately following the meeting
and send it to the other party. Don‘t allow misperceptions or
misinterpretations.
9. Build rapport with the other party. It will help you uncover their
needs, show genuine interest in crafting a win-win strategy and lead
both of you to being more creative in developing options that will
meet both your needs.
10. Shut-up and listen. Then ask good, insightful questions. Good
negotiators are detectives. They ask good questions and then they
listen.
11. Do your homework. Gather as much information as you can prior
to the negotiation. How are they measured? What pressure are they
under? Who do they report to? What options do they have etc.? The
more information you have the stronger a negotiator you will become.
12. Practice and then practice some more. If you are negotiating with a
Procurement or Purchasing officer, they negotiate several times per
day. Without practice, training and preparation you are at a distinct
disadvantage.

78
13. Be prepared to walk-away. Not all deals are win-win or good deals
for you and your company. Be prepared to walk-away from bad
business.
14. Think creatively. Look for ways to expand the deal not to divide it
up equally. We call this ―expanding the pie‖ rather than ―dividing the
pie.‖
Don’t
1. Don‘t take anything said personally. No matter what the other
party says or how they act, stay calm. Be professional and don‘t let
your emotions cloud your judgment.
2. Don‘t give something away without getting something in return.
Concessions have to be bi-lateral. It‘s easy to get reciprocation
if you simply say ―I will do this if you will do that‖!
3. Don‘t make unreasonable demands; you will lose credibility.
4. Don‘t rush the negotiation. Oftentimes complex deals take time
to negotiate.
5. Don‘t interrupt the other party. Be a good listener. Listen to
understand and gather information. Don‘t miss anything because
you are preparing to respond. You will have time to respond
when they are finished talking.

79
6. Don‘t use the word ―between or range‘. If you say our price will
be between X and Y buyers will only hear the lowest number
and they will become fixated on it. Don‘t put yourself in an
untenable position.
7. Don‘t negotiate with someone that cannot sign off on the deal.
8. Don‘t ignore the buyer‘s body language. Think like a stop light:
green, yellow or red.
9. Don‘t focus on positions or demands. Instead focus on interests.
10. Don‘t negotiate for a bigger share of the pie. Do work with the
other party to make the pie bigger.
11. Don‘t use confrontational language that creates defend/attack
spirals. Do develop a friendly, trusting relationship with your
opposite number.
12. Don‘t make concessions without getting something in return. Do
think of what the other party will value that won‘t cost you much.
13. Don‘t agree to a deal that doesn‘t meet your must-have needs. Do
plan the negotiation with a clear understanding of your BANTA, or
your Best Alternative to Negotiated Agreement.

80
14. Don‘t negotiate one issue at a time. Do put everything on the table
at the start and encourage your partner to do it so there can be lots
of trade-offs.
15. Don‘t just keep muddling through if the negotiation seems stuck.
Do change the dynamics: Sleep on it, move to a new location, ask
for ―crazy‖ ideas that can unleash creativity, or change the
negotiators.

81
CHAPTER 12
DIFFERECE AND SIMILARITIES BETWEEN THE
MEDIATION AND CONCILIATION
The concept of Mediation and Conciliation are interconnected to
each other. Mediation is aimed at conciliation and conciliation has
the elements of mediation. In the dictionary of modern legal usage by
Bryan A. Garner, it is stated thus:
―The distinction between mediation and conciliation is widely
debated among those interested in ADR‘ Some suggest that
conciliation is ‗a non-binding arbitration‘, whereas mediation is
merely ‗assisted negotiation‘. Others put it nearly the opposite
way: conciliation involves a third party's trying to bring together
disputing parties to help them reconcile their differences,
whereas mediation goes further by allowing the third party to
suggest terms on which the dispute might be resolved. Still others
reject these attempts at DIFFERENTIATION and contend that
there is no consensus about what the two words mean- that they are
generally interchangeable. Though a distinction would be
convenient, those who argue that usage indicates a broad
synonymy are most accurate‖
The section 73 of the AC Act contemplates the conciliator
suggesting the terms of settlement. Therefore, the point of distinction
noted in the above passage does not hold good in India.

82
In Afcons Infrastructure case, where the conciliator is a
professional trained in the art of mediation (as contrasted from a
layman, friend, relative, well-wisher, or social worker acting as a
conciliator), the process of conciliation is referred to as mediation. In
cases where the third party assisting the parties to arrive at a
settlement is not a trained professional mediator, the process is
referred to as conciliation. It is however necessary to point out that in
many States, there are trained mediators including legal professionals
and there are mediation centres managed by the Judiciary in few
States. Mediation has emerged as a science now.
Conciliation means the adjustment and settlement of a dispute in a
friendly, un-antagonistic manner. This meaning of the term
Conciliation does not make it clear as to whether the two concepts of
conciliation and mediation would have different connotation or they
would refer to the same mode.
The Arbitration and Conciliation Act, 1996 under Part I, Section
30, of the Act, provides that an arbitral tribunal may try to have the
dispute settled by use of ‗mediation‘ or ‗conciliation‘. Sub-Section (1)
of Section30 permits the arbitral tribunal to ―use mediation,
conciliation or other procedures‖, for the purpose of reaching
settlement. The Code of Civil Procedure (Amendment) Act, 1999 that
introduced
Section 89, speaks of ‗Conciliation‘ and ‗Mediation‘ as different
concepts. Order 10 Rules 1A, 1B, 1C of the Code also go along with
Section 89. Thus, the Parliament of India has made a clear distinction

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