MEDIATION WITH CONCILIATION

1. MODES OF DISPUTE RESOLUTION;

The traditional mode of dispute resolution i.e. litigation is a lengthy process leading to unnecessary
delays in dispensation of justice as well as over-burdening the Judiciary. In such a scenario, Alternative
Dispute Resolution (ADR) mechanisms like arbitration, conciliation and mediation etc. offer better and
timely solution for resolution of a dispute. These ADR mechanisms are less adversarial and are capable
of providing an amicable outcome in comparison to conventional methods of resolving disputes.

Various Alternative Dispute Resolution mechanisms can be classified as:

1. Arbitration

2. Conciliation

3. Mediation

4. Judicial Settlements inclusive of Lok Adalats

5. Negotiation

ARBITRATION;

 This is a legally sanction mode of ADR system.

 It deals with the settlement of disputes mainly commercial and civil disputes.
 Arbitration should be made with the consent of the parties or by the order of the
court.
 The arbitration process, third party plays the role of presiding officer of the court.
 An arbitral agreement must be required for arbitration.
 The process of arbitration is regulated by the arbitration and conciliation Act, 1996.
 In arbitration it is not possible to go to court if either party to in dispute, unhappy
with the decision

CONCILIATION;

 It is a part of the ADR system.

 Part -3 of the arbitration and conciliation Act, 1996 in section 61-81 containing the
provision regarding the mode and mechanism of the conciliation.
 It deals with the settlement of consumer dispute.
 It deals with the settlement of consumer dispute.
 Conciliation of disputes arising out of or relating to contractual or other legal
relationship.
 The conciliator simply assists in reaching the settlement of agreement.
  The conciliator proceedings have formal atmosphere.

MEDIATION;

 Mediation is the party and parcel of ADR system.

 In mediation the dispute is solved by the guidance of third parties.
 It is an informal process.
 In mediation process, a mediator does not adjudicate who is wrong or right, rather he
assists the disputing parties to unite explore and settled amicably.
 In mediation the mediator actively helps the disputants to solve the issue.

LOKADALAT;

 Lokadalat is one of the alternative dispute redreessal mechanisms.

 It has been given statutory status under the legal services authorities Act -1987.
 The award made by the lokadalat is deemed to be a decree of a civil court.
 There is no appeal against the above award.
 There is no court fee payable when a matter is filed in a lokadalat.
 Any matter relating to an offence not compoundable under the law shall not be
settled in lokadalat.

NEGOTIATION;

 The negotiation is the first attempt of ADR system.

 In this system only the disputants sit together and discuss the conflicts and try to solve the
disputants.
 The cooperation and communication plays an important role in this system .
 It is purely a voluntary process.
 Its outcome is non-binding.

NEED OF ADR; IMPORTANCE OF MEDIATION;

Alternative dispute resolution (ADR) pertains to a diversity of non-judicial methods for settling dispute.
These contain negotiation, mediation, arbitration, conciliation, confidential judging, impartial expert
fact-finding, mini-trial, summary jury trial, and moderated settlement conferences. Alternative Dispute
Resolution (ADR) is the strategy for settling conflicts without litigation, such as arbitration, mediation, or
negotiation. ADR methods are usually less expensive and more expeditious. They are increasingly being
wielded in conflicts that would otherwise arise in litigation, including high-profile labor disputes, divorce
litigations, and private injury claims. One of the major rationales parties may incline toward ADR
proceedings is that, unlike adversary litigation, ADR protocols are frequently collective and enable the
parties to appreciate each other’s stances. ADR also enables the parties to appear with more profitable
results that a bench may not be lawfully authorized to inflict.

Advantage of Alternate Dispute Resolution;

  It is less costly
 It is less time consuming.
 It is open from technicalities as in the case of supervising cases in law Courts
 The parties are independent to examine their dissimilarity of belief without any suspicion of
divulgence of this fact before any law Courts.
 The last but not the least is the point that parties are amassing the sentiment that there is no
loss or gaining a victory emotion among the parties by at the same time they are keeping the
sentiment that their objection is retaliated and the connection between the parties is
replenished.

Mediation is a private but structured method of dispute resolution. It is a voluntary process in which
both the disputing parties come together to find a solution to their problem by entering into a written
contract and appointing a mediator who assists parties in reaching an amicable settlement. A mediator
can be of any designation and can be appointed either formally or informally. Contrary to conventional
courts, the decision of the mediator is not imposable and the decision-making power rests in the
disputing parties. Mediation provides the parties to express their emotions, interests, end goal, and
opinions which are often not given importance in the conventional courts. There are no fixed and rigid
proceedings in alternate dispute resolution and mediation is the most flexible of all these methods
making it the most desirable one. It is a party-centric and neutral procedure. Parties can withdraw from
the procedure of mediation at any stage without stating any explanation. All the information and
evidence presented during mediation is kept confidential thus outside parties do not have access to the
mediation proceedings. Data given to the mediator cannot be used for any other purpose besides
helping the mediator to reach an appropriate resolution. This ensures that nobody’s public image gets
tarnished in the process. One of the major advantages of mediation is that neither of the parties loses
and the interests of both the parties are conserved. It is a win-win situation for both parties. The parties
control the end result of the mediation and either party has the advantage of terminating the mediation
without giving any reason.

Mediation in India is gaining popularity as it is a low-cost, party-centric and neutral

procedure. There is a need for dedicated law enacted to formalize the process of mediation. To have a
better understanding of their rights parties can hire legal professionals specially trained in ADR to
represent them and explain the situation in a professional way to the mediator. For all these benefits of
mediation, in the coming future, it will be the most common method of dispute resolution especially in
corporate affairs and family disputes.

RESTORATIVE JUSTICE AND GANDHIAN PRINCIPLE

Restorative justice is a new movement in the fields of victim ology and criminology. Acknowledging that
crime causes injury to people and communities, it insists that justice repair those injuries and that the
parties be permitted to participate in that process. Restorative justice programs, therefore, enable the
victim, the offender and affected members of the community to be directly involved in responding to
the crime. They become central to the criminal justice process, with governmental and legal
professionals serving as facilitators of a system that aims at offender accountability, reparation to the
victim and full participation by the victim, offender and community. The restorative process of involving
all parties – often in face-to-face meetings – is a powerful way of addressing not only the material and
physical injuries caused by crime, but the social, psychological and relational injuries as well. When a
party is not able, or does not want, to participate in such a meeting, other approaches can be taken to
achieve the restorative outcome of repairing the harm. In addressing offender accountability these
approaches can include restitution, community service and other reparative sentences. In addressing
victim and offender reintegration they can include material, emotional and spiritual support and
assistance. Krishna Iyer, J., once stated that, “It is the weakness of our jurisprudence, that victims of
crime and the distress of the dependents’ of the victim do not attract the attention of law. In fact, the
victim reparation is still the vanishing point of our criminal law.”[4]Having said that, as a country that has
deeply embedded values of Ahimsa and Satyagraha, India should strive to enforce restorative justice by
all possible means. Furthermore, it is well known that isolation has been directly linked to acts of
violence. This alongside many other shortcomings in the Indian prison system, such as torture,
overcrowding, lack of adequate health and medical care; prove to be detrimental to the prisoners’
physical and mental health. Therefore, instead of improving and rehabilitating the prisoner, he develops
a much worse attitude than what he began with. Given the loopholes, defects and disadvantages of the
criminal justice system in India and; the advantages and long-term benefits of the restorative justice
system on the other hand – it is imperative that the legal system incorporates more of the restorative
justice approach as much as possible. Reformation of the legal system to keep up with the dynamic
society and the changes that technology and modernization brings, is of the essence in dispensing
justice. Though the criminal justice system has been religiously followed in India, it is high time that the
India legal system accommodates restorative justice to a more increasing extent. Ergo, in cases where
incarnation is a requirement, the authorities and parties in conflict should take all possible measures to
see if a hybrid of both the justice systems may be applied. Furthermore, the judicial system should be
able to create more awareness amongst the society and its citizens, about the field of restorative justice.
National websites, advice from legal counsels, etc. play an important role in raising this kind of societal
awareness.

GANDHIAN PRINCIPLE OF NON VIOLENTCONFLICT RESOLUTION;

Modern world is full of multidimensional and multidisciplinary conflicts involving use of physical and
psychological violent tools. The panacea for conflict resolution requires revivalist research approach in
context of philosophy of Mahatma in conflict situation, as per his philosophy conflict starts in the mind
of an individual and physical outburst is only subsequent expression of this conflict. Gandhian approach
addresses the issue of conflict at individual level. The paper discusses the conflict resolution in different
levels namely, individual and collective which takes form of individual violent action, industrial conflicts
and conflicts between states. We find that Gandhi’s approach is still very relevant in modern complex
resolution and there is a need to revive and resurrect the philosophy at the level of institutions that are
working for conflict resolution. Disputes are solved in a variety of ways, including coercion, lumping it,
avoidance, Mediation, adjudication, arbitration and negotiation. Some of these methods are more
applicable than others to certain types of conflict or to certain situations. Those attempting to overcome
a conflict by unilateral means, for example, by using coercion or withdrawing, may suffer the personal
costs of either making a resolution more difficult than it need be by increasing the antagonism of the
opponent or by totally failing to resolve the conflict.

(a) Coercion: Coercion can readily be resorted to in conflict situations where one party feels

Powerless to conduct the dispute in any other way; where power disparities are so great that

Reciprocity need not be considered, where concern over the crucial issues involved gives way to

Concern over not yielding, or where loss of face becomes an issue. Challenges to beliefs, status and

Wants continually confront individuals and groups. The usual response to such challenges is

Opposition, often aggressive, and this can lead to violence.

(b) "Lumping it" and avoidance: Many grievance situations do not get to the conflict stage. Rather

Than being resolved, they are sidestepped by the resignation or exit of one party. This happens either

By the process of lumping, that is, ignoring the issues that gave rise to the problem, or "avoidance"

This entails removing one from the situation giving rise to the grievance.

(c) Mediation, arbitration, adjudication: When physical aggression (or other coercive measures)

Or avoidance fails to successfully terminate a conflict situation, or where interpersonal (or

Intergroup) negotiations break down, the use of third parties to facilitate a settlement through

Mediation, adjudication or arbitration becomes likely. Although unsuccessful negotiations often

Result in third-party intervention (requested or otherwise), it is proposed to deal with these latter

Methods of conflict resolution first, because, when properly conducted, interpersonal negotiations

Maximize the probability of a lasting resolution with the minimum of cost to either side.

(d) Negotiation: When facing a conflict there are alternatives to coercion or the reliance upon the

Judgment of third parties. Like mediation, negotiation is a search for an outcome that is

Adequately suitable to both parties, but unlike mediation, the dispute is settled bilaterally, that is,

The two parties are themselves the decision makers.

TRADITIONAL MEDIATION PRACTICES IN INDIA ;

Abraham Lincoln had once said:” discourage litigation, persuade your neighbors to compromise
whenever you can. Point out to them how the normal winner is often a loser in fees, expenses, cost and
time “The use of mediation, as an Alternative Dispute Redrassal (ADR) mechanism dates back Mediation
n gained popularity as an ADR mechanism with the re-introduction of Lok Adalats in the Indian Judicial
system. Enacted in1987, the Legal Services Authority Act gave a statutory status to the Lok Adalts in
India for the first time. Under this act, the decision of the Lok Adalats has been awarded the same status
as that of a civil court. The terms 'mediation' and 'conciliation', whose usages were considered to be
synonymous previously, received significant distinctions in their usages when the Arbitration and
Conciliation Act was enacted in 1996. Not only did the act lay down a clear definition for conciliation but
also consolidated the laws relating to domestic arbitration in India. The mediator, unlike the conciliator,
does not take an active part in the mediation process and thus, the terms cannot be used as a substitute
for each other. The development of mediation as an ADR mechanism can also be attributed to section
89 of the Civil Procedure Code(CPC), 1908 which was inserted by the CPC (Amendment) Act, 1999 with
prospective effect from 1/7/2002. This particular development was due to the efforts of Hon'ble Mr.
Justice A M Ahmadi. Ahmadi, the then Chief Justice of India, had invited the Institute for the Study and
Development of Legal System (ISDLS) to India for a national legal exchange programme between India
and the USA. The ISDLS examined the problems of institutional backlogs in the Indian judicial system and
suggested the ADR mechanisms and legislative and structural reforms of the laws relating to these
mechanisms following which, new reforms were introduced in 2002 in the form of amendment of
section 89 of the CPC. However, the amendment was challenged by a group of lawyers following which
the Malimath Committee and the 129th Law Commission were constituted. In the light of the reports
submitted by the committees, the Hon'ble Supreme Court in the case of Salem Advocates Bar
Association vs. Union of India. Made it mandatory for the courts to refer cases to the alternative forums,
if they were so pleased. This case is a landmark one in the development of mediation in India. Since
then, the judges of the Supreme Court have contributed significantly towards the development of
mediation as an ADR mechanism. Under Hon'ble Mr. Justice R C Lahoti, a Mediation and Conciliation
Committee was established and in a Project on Mediation was also initiated in Delhi in the year 2005. In
the same year, A Permanent Mediation Centre was inaugurated at the Tis Hazari court complex and
judicial mediation was started at the Karkardooma court complex. Two mediation centres were also
inaugurated, one at the Karkardooma court complex in Delhi and another at the Patiala court in 2015.

MEDIATION IN INDIA

At present, mediation in India can be initiated in three ways - first, by providing for it in a dispute
resolution clause in contracts and resorting to it either through institutional or ad-hoc mediation;
second, by way of reference by the court under Section 89 of Code of Civil Procedure, 1908 ('CPC') or
under special legislations such as Section 37 of Consumer Protection Act, 2019 after the case is filed in
courts; and third, mandatory pre-litigation mediation as provided under Section 12A of Commercial
Courts Act. Unlike arbitration and conciliation, there is no overarching law in the nation that governs
mediation. By including ADR in the civil procedure, Section 89 of the CPC, 1908 was a significant step
toward institutionalizing ADR. Where it appears to the court that there exist elements of a settlement
which may be acceptable to the parties, this provision gives civil courts the authority to submit civil
disputes to mediation. Salem Advocate Bar Association6 and Afcons Infrastructure Ltd. and Ors.7 are the
two significant cases through which mediation in India received an impetus. Through the Salem
Advocate Bar Association case, the Apex Court established a Committee to facilitate improved Section
89 implementation by guaranteeing speedier administration of justice. The Model Rules, 2003 were
written by this Committee and has been used as a guide by several High Courts to create their own
mediation regulations.8 Additionally, in the landmark case of Afcons Infrastructure Ltd. and Ors., when
analyzing Section 89 of the CPC, 1908, the Apex Court determined that taking into account the general
language of Rule 1A of Order 10 of the CPC, the civil court should always refer matters to the ADR
procedure, except in certain recognized excluded categories of cases. It continued by stating that the
court must quickly document the grounds for not using any of the settlement procedures outlined in
Section 89 when the matter is not appropriate for reference to any of the ADR processes. Therefore,
pursuant to Section 89, a hearing shall be held following the filing of the pleadings to consider recourse
to an ADR process, but actual reference to an ADR process shall not be required in every
instance.9Looking at these judgments, one will presume that the higher judiciary is generally in favour of
mediation and is eager to encourage all appropriate disputes to be handled through mediation rather
than adding to the court's workload. However, in practice, Section 89 of the CPC and the
aforementioned judicial declarations have not had the expected effect since the district justice judges,
who are entitled under Section 89 to send situations to mediation lack proper training, along with which
there are a number of structural problems that have impeded the adoption of mediation. Additionally,
because legal proceedings in Indian courts have a reputation for being lengthy, difficult, and expensive,
the judicial system becomes ineffectual and leads to a need for a more speedy and inexpensive dispute
resolution that is not being met by conventionally available legal services.

MEDIATION IN THE UNITED STATES OF AMERICA

Forms of mediation can be found in the earliest records of the United States, extending back to Native
American dispute resolution practices. The early settlers from England brought the idea of court-
sponsored mediation. In due of the disruption caused by labour disputes, mediation became more
popular in the early 20th century. The early 1980s and late 1970s saw the first attempts at mediation-
related legislation. And today, it is frequently used in civil and administrative agency cases. There exists
a strong public policy that supports ADR techniques, including mediation. Despite being well-known for
its propensity for litigation, the United States has one of the most sophisticated and effective systems in
the world for resolving conflicts through procedures such as mediation and arbitration. The public policy
of reducing the burden of the courts and the significant costs associated with the expansion of the court
system are two very important factors in the adoption of such mediation programs.

MEDIATION IN EUROPEAN UNION

The European Union (EU) has purposefully promoted mediation and other ADR techniques during the
past two decades in order to improve citizen's access to justice. It has intensified this effort, particularly
over the past ten years. Mediation has been positioned at the forefront of EU policy on improving access
to justice and effective dispute settlement among the range of ADR methods that are now accessible.
The shift toward mediation reflects the growing tendency in the EU and the dominant position that
mediation now holds within the broad ADR spectrum.
Trends of growth definitely suggest and shed light on how mediation has become a more and more
common form of dispute settlement. According to the research that was conducted and the analysis of
the many mediation roots, legislative reforms are to thank for the origins of mediation in the United
States, the United Kingdom, and India. The mediation system in India is still expanding, and with the
passage of the Mediation Bill, 2021, one can only hope that it will continue to improve. In addition,
although American lawyers initially perceived mediation as a vulnerability and the fought it as an
unwelcome requirement inside the profession, over the past 20 years they have come to see mediation
as just another tool in their toolbox. Additionally, it is acknowledged in the European Union that despite
its obvious flaws, the Directive is a unique plan for bringing about a noticeable change in the mindset of
the excessively litigious society. This paper also demonstrates how, despite the fact that the mediation
procedure is generally the same; there are differences in how it is applied in different nations.

ELEMENTS, PROCESS OF MEDIATION AND ROLE OF MEDIATOR;

Mediation is a procedure in which two or more persons with the help of a neutral mediator are able to
find a mutual acceptable solution of their conflict. Contemporary mediation procedures were first
developed in the U.S.A. in the sixties and seventies. Mediation enables parties in conflict to discuss their
underlying needs and interests instead of just fight over legal rights and entitlements. The mediator
facilitates the process of conflict resolution, however, the decisions are only be made by the affected
parties. Mediation is a so called alternative (= out of court) dispute resolution method, a process in
which the parties to a dispute, with the assistance of a neutral third party (the mediator), identify the
disputed issues, develop options, consider alternatives and endeavor to reach a mutual acceptable
solution of their conflict. The mediator has no advisory or determinative role in regard to the content of
the dispute or the outcome of its resolution, but is responsible for the communication process whereby
resolution is attempted. There are 5 elements which are essential to mediation:

 Mediation is an option (but not always totally voluntary). The parties need to be willing to
participate; they must have an interest in resolving the dispute. They can either agree at the
time the conflict begins, or they can incorporate an „agreement to mediate“ into their business
contracts
 Mediation is confidential. No details about what occurred during the mediation, or about the
settlement that was reached, can be discussed outside the mediation room without the consent
of both parties.
 Mediation is basically a so called alternative dispute resolution method, usually outside the
court before a legal action is taken. Mediation involves negotiation to reach consensus in
contrast to litigation, where the parties may not be interested in reaching any agreement
whatsoever.
 Mediation involves a neutral third party which has no authority to settle the dispute. The
mediator is not a judge or arbitrator but a facilitator. A mediator simply encourages the parties
to reach agreement.
  Mediation does not focus (backwards) on rights but is rather future oriented on needs and
interests.

Mediation is an universal dispute management method used in different conflict areas like

 commercial disputes: in or between businesses, employer and employees; units and

(co)workers,
 disputes between partners and shareholders;
 consumer disputes;
 family disputes: divorce, conflicts about custody, payment of maintenance,
 inheritance disputes (also before death to determine who inherits what)
 disputes in personal injuries and damage of property;
 Community and neighborhood disputes, even in criminal conflicts.

STEPS IN MEDIATION;

 Mediator’s Opening Statement (MOS)

 Parties‘ Statements
 Agenda Setting
 Exploring Conflicts and Interests
 Generating Options
 Initial Negotiation phase
 Reality Testing
 Outcome and Drafting.

ROLE OF THE MEDIATOR;

A mediator is a trained professional who acts as a neutral facilitator during the mediation process.
Mediation is a procedure where parties discuss disputes and the mediator—the impartial third party—
the role of the mediator is to bridge the interests of two opposing parties by defining their issues and
eliminating obstacles to communication. They guide the conversation and the process to minimize or
eliminate confrontation and ill will. They will seek concessions from each party to identify the middle
ground and provide steps for each party to follow to enact a reasonable solution. The daily duties, roles
and responsibilities of a mediator include:

 Convener: A convener helps the two parties to arrange for the meeting to happen and helps
determine factors such as the time, location and involved parties.
 Educator: The mediator educates the involved parties about the process, other alternatives for
resolving the conflict, issues that are usually addressed during the mediation process, court
standards, research and principles that may be considered.
 Facilitator of communication: As a neutral third party, the mediator is present to ensure each
party is fully heard during mediation by facilitating communication and ensuring proper
language, behavior and listening.
  Translator: In some cases, the mediator may help to increase understanding by rephrasing or
translating communication so it is better received and more accurately presented.
 Clarifier: The mediator confirms that everyone sitting at the mediation table fully understands
one another by clarifying through repetition or summarization.
 Process advisor: They act as an advisor, suggesting procedures for moving forward with
mediation discussions. This can include consulting with legal counsel or outside experts.
 Angel of realities: The mediator may exercise the right to question the practicality of solutions
and whether they are consistent with the goals and interests that the parties expressed when
beginning the mediation process.
 Catalyst: To help the parties reach a more rapid agreement, the mediator can suggest different
resolution options, stimulate new perspectives or offer reference points to consider.
 Detail person: The mediator keeps track of necessary information and writes up the final
agreement after the parties to reach a resolution.

So we can see that mediation is a very efficient and reliable system through which disputes can be
resolved. Through this process, the disputing parties can reach an amicable end. The most important
element is the mediator in this process. He makes sure that no party suffers any undue loss. It is his
responsibility to ensure that the case reaches its end and does not have to be transferred back to the
traditional form of litigation. So we can see that there is a huge responsibility on the shoulders of a
mediator.

JUDICIAL INTERPRETATION AND DISPUTE RESOLUTION INSTITUTE IN INDIA;

Mediation is an out of court settlement which is voluntary and two parties undergo this process to reach
an amicable settlement. Mediation being one of the Alternative Dispute Resolution mechanisms is an
upcoming field in the legal sphere. Mediation is a process where a third party who has no benefits from
the outcome tries to solve is the dispute between the two conflicting parties. The mediation process
begins with an interaction between the mediator and the two parties. The parties then state their issues
and what is the outcome they desire. The basic motive of mediation is to provide the parties with an
opportunity to negotiate, converse, and explore options aided by a neutral third party, to exhaustively
determine if a settlement is possible. There are certain preconceived notions about the working of
mediation by Indians as they are unfamiliar about this concept. Few misconceptions are that mediation
yields a lesser form of justice the mediator will make erroneous decisions, the process of mediation does
not work, it is a waste of time and other such apprehensions. Mediation or any ADR mechanism is not
new to India. Alternative Dispute Resolution has been practiced from the Vedic period.
In the case, Perry Kansagra vs. Smriti Madan Kansagra .the Court held that the process of mediation
was founded on an element of confidentiality. Mediation stands on a completely different footing as
against regular adjudicatory processes. Instead of an adversarial stand in adjudicatory proceedings, the
idea of mediation was to resolve a dispute at a level that was amicable rather than adversarial. It is quite
obvious that the reason why Section 89 has been inserted is to try and see that all the cases which are
filed in court need not necessarily be decided by the court itself. The Alternative Dispute Resolution
(A.D.R.) Mechanism as contemplated by Section 89 is arbitration or conciliation or judicial settlement
including settlement through Lok-Adalat or mediation. Section 89(2)(d), therefore, contemplates
appropriate rules being framed with regard to mediation. This was held in the case Salem Advocate Bar
Association vs. Union of India (UOI). In Abdul Rehman Antulay and Ors. v. R.S. Nayak and Anr while
holding that speedy trial at all stages is part of right Under Article 21, it was held that if there is a
violation of the right of speedy trial, instead of quashing the proceedings, a higher court can direct
conclusion of proceedings in a fixed time. To render speedy justice is the duty of the state and the
administration of justice is a state subject. Therefore the States must look into the maintenance of Fast
track courts with the help of the Union Government. Mediation has become the order of the day.
Various cases in the Supreme Court and High Courts have been referred for mediation. This is clearly
visible in the landmark case M Siddiq (D) Thr v. Mahant Suresh Das Ors[19] also known as the Ram
Janmabhoomi case in which the Supreme Court referred the parties for mediation. The mediation report
was submitted by the Court-appointed mediators namely retired Justice F M I Kaifulla, Sri Sri Ravi
Shankar, and Sriram Panchu.The parties weren't able to reach an amicable settlement. The Courts in
India are taking steps to popularize the ADR process. The Supreme Court held that:
If the court refers the matter to an ADR process (other than Arbitration), it should
keep track of the matter by fixing a hearing date for the ADR Report. The period allotted for the ADR
process can normally vary from a week to two months (which may be extended in exceptional cases,
depending upon the availability of the alternative forum, the nature of the case, etc.)
DISPUTE RESOLUTION INSTITUTION ;
IIAM provide facilities for alternative dispute resolution (ADR), which includes
international and domestic commercial arbitration, mediation and negotiation. IIAM ADR Rules help
parties to take maximum advantage of its innovative procedures for the resolution of disputes quickly
and economically, outside the court system.
IIAM believe that effective dispute management procedures will substantially reduce,
if not wholly eliminate, potential litigation. Various IIAM DPM services are meant to provide opportunity
for citizens to participate in the prevention and early intervention of conflicts as an alternative to
institutional mechanisms, to pre-empt disputes.
Today not a single scope of activity can be named where negotiation, mediation or
arbitration cannot be applied. A comprehensive professional exposure to ADR not only paves way for a
new profession, but also helps in cutting edge and high-quality law practice. IIAM conducts various
training programs and courses to suite your needs.
IIAM is one of the pioneer institutions in India started in 2001, providing institutional
ADR services, DPM services, Training programs and Accreditation of ADR professionals. IIAM is one of
the founding members of Asia Pacific Centre for Arbitration & Mediation (APCAM) and functions as the
APCAM Centers in India.
Indian Institute of Dispute Resolution
Disputes are intrinsic to Society. Simply stated a Dispute is a disagreement among Persons and People. It
can be in a Family, Work Place, and Market or even cross border. Disputes can arise even among Firms,
Companies, Trusts, Govts and Nations. A Dispute emanates from a simple disagreement, argument, or
controversy and if left unresolved gives rise to a legal proceeding such as Arbitration, Mediation, or a
Lawsuit and even Prosecution if it has Criminal overtures.
Broadly the types of disputes dealt with by Courts can be divided into Two types:

 Civil cases and

 Criminal cases.
Timely, Cost Effective and Efficient Resolution of Disputes of all kinds has been a Challenge for the
Civilized World for more than a century. Globally as well as in India, adjudication of disputes by taking
recourse to conventional adversarial mainstream Judicial System has proved to be time consuming and
costly. In the fiscal world keeping pace with the fast- changing Commerce, breaking barriers of time and
distance, ADR has been evolving steadily. Complexities of multi-party Contracts and involvement of
information technology coupled with high fiscal stakes has lately led to several path breaking evolutions
in conventional ADR mechanisms viz. Arbitration, Mediation and Conciliation.
It has now become imperative for every legal professional and law student to keep pace with these
innovations and developments through continuous Learning and Education.
Indian Institute of Dispute Resolution, IIDR, is a state-of-the-art Law School offering online and offline
Certificate Courses and Diplomas in all the facets of International and Domestic Dispute Resolution.
Established by our Founder Mr. Mehar S Rathi, who had rich experience of more than 52 Years in legal
arena spearheading Legal Education and Training since 1992, not only in India but also South Asia.
Institutes functioning under IIDR;

 Indian Institute of Arbitration – IIArb

 Indian Institute of Mediation – IIMed
 Indian Institute of Conciliation – IIC

Mediations a mechanism for resolution of Commercial and related disputes has been in existence for
more than a century. Globally as well as in India, adjudication of disputes by private neutral persons has
always found preference in the fiscal world over the time consuming conventional adversarial
mainstream Judicial System. Keeping pace with the fast- changing Commerce, breaking barriers of time
and distance, Mediation too has been evolving steadily. Complexities of multi-party Contracts and
involvement of information technology coupled with high fiscal stakes has lately led to several path
breaking evolutions in conventional Mediation Law. It has now become imperative for every legal
professional and law student to keep pace with these innovations and developments through
continuous learning and education.

MODES OF COMMUNICATION SKILLS IN MEDIATION ;

Effective communication is at the core of successful mediation. Many people take for granted the role of
communication in relationships. Those who strive to become mediators need to approach
communication as an area worthy of analysis and practice. After all, mediators not only need to use
strong communication skills to understand a dispute and to connect to parties; they also need to help
the parties to engage in a constructive exchange when their own poor communication skills may be at
the heart of the conflict.

VERBAL COMMUNICATION;

Verbal communication occurs when we engage in speaking with others. It can be face-to-face, over the
telephone, via Skype or Zoom, etc. Some verbal engagements are informal, such as chatting with a
friend over coffee or in the office kitchen, while others are more formal, such as a scheduled meeting.
Regardless of the type, it is not just about the words, it is also about the caliber and complexity of those
words, how we string those words together to create an overarching message, as well as the intonation
(pitch, tone, cadence, etc.) used while speaking. And when occurring face-to-face, while the words are
important, they cannot be separated from non-verbal communication.

NON-VERBAL COMMUNICATION;
What we do while we speak often says more than the actual words. Non-verbal communication includes
facial expressions, posture, eye contact, hand movements, and touch. For example, if you’re engaged in
a conversation with your boss about your cost-saving idea, it is important to pay attention to both the
their words and their non-verbal communication. Your boss might be in agreement with your idea
verbally, but their nonverbal cues: avoiding eye contact, sighing, scrunched up face, etc. indicate
something different.

Effective & Ineffective Communication;

Effective communication is important in both personal and business aspects of our lives; particularly as
ineffective communication can create short- and long-term hostilities as well as decreased work
productivity. We often don’t think about the process of communicating while we are doing it, but paying
closer attention to how you both send and receive information can eliminate problems and improve
relationships. Communication is effective if everything in the communication process goes as planned:
the receiver understands the message in the way you intended. Professionally, this allows proper
procedures to be executed correctly and on time, increasing productivity and saving money. Personally,
it prevents misunderstandings and can enrich relationships. Understanding strategies for effective
communication such as listening, focusing on the others in the process, and asking questions for
clarification all improve your chances for effective communication.

Any disruption or failure in the process can create ineffective communication.

Language is an obvious example; if you as a sender speak in a language the receiver doesn’t understand,
the communication fails. Writing a message to a person who has difficulties reading is also ineffective
communication. These are called barriers, and they are not all so obvious. For example, if you have an
idea but lack confidence to speak up, that is a barrier. Body language, such as slouching in a chair so that
it looks like you are bored, is also a barrier. By being empathetic, you are imagining what it is like to be in
the other person’s situation, which helps the communication process. Stereotypes, generalizations and
inaccurate perceptions are also barriers, and are harder to remove since you must be aware of them.
Watching and listening to others can help you gauge your stereotypes and perceptions in relation
Effective Problem Solving and Decision Making

Types of Decision Makers;

Problem solving and decision making belong together. You cannot solve a problem without
making a decision. There are two main types of decision makers. Some people use a systematic, rational
approach. Others are more intuitive. They go with their emotions or a gut feeling about the right
approach. They may have highly creative ways to address the problem, but cannot explain why they
have chosen this approach. The most effective method uses both rational and intuitive or creative
approaches. There are six steps in the process:

 Identify the problem;

To solve a problem, you must first determine what the problem actually is. You may think you know, but
you need to check it out. Sometimes, it is easy to focus on symptoms, not causes. You use a rational
approach to determine what the problem is. The questions you might ask include:

I. What have I (or others) observed?

II. What was I (or others) doing at the time the problem occurred?
III. Is this a problem in itself or a symptom of a deeper, underlying problem?
IV. What information do I need?
V. What have we already tried to address this problem?
 Search for alternatives;

It may seem obvious what you have to do to address the problem. Occasionally, this is true, but most
times, it is important to identify possible alternatives. This is where the creative side of problem solving
really comes in.Brainstorming with a group can be an excellent tool for identifying potential alternatives.
Think of as many possibilities as possible. Write down these ideas, even if they seem somewhat zany or
offbeat on first impression. Sometimes really silly ideas can contain the germ of a superb solution. Too
often, people move too quickly into making a choice without really considering all of the options.
Spending more time searching for alternatives and weighing their consequences can really pay off.

 Weigh the alternatives

Once a number of ideas have been generated, you need to assess each of them to see how effective
they might be in addressing the problem. Consider the following factors:

I. Impact on the organization

II. Effect on public relations
III. Impact on employees and organizational climate
IV. Cost
V. Legality
VI. Ethics of actions
VII. Whether this course is permitted under collective agreements
VIII. Whether this idea can be used to build on another idea
 Make a choice

Some individuals and groups avoid making decisions. Not making a decision is in itself a decision. By
postponing a decision, you may eliminate a number of options and alternatives. You lose control over
the situation. In some cases, a problem can escalate if it is not dealt with promptly. For example, if you
do not handle customer complaints promptly, the customer is likely to become even more annoyed. You
will have to work much harder to get a satisfactory solution.

 Implement the decision

Once you have made a decision, it must be implemented. With major decisions, this may involve
detailed planning to ensure that all parts of the operation are informed of their part in the change. The
kitchen may need a redesign and new equipment. Employees may need additional training. You may
have to plan for a short-term closure while the necessary changes are being made.

 Evaluate the outcome

Whenever you have implemented a decision, you need to evaluate the results. The outcomes may give
valuable advice about the decision-making process, the appropriateness of the choice, and the
implementation process itself. This information will be useful in improving the company’s response the
next time a similar decision has to be made.

 Creative Thinking

Your creative side is most useful in identifying new or unusual alternatives. Too often, you can get stuck
in a pattern of thinking that has been successful in the past. You think of ways that you have handled
similar problems in the past. Sometimes this is successful, but when you are faced with a new problem
or when your solutions have failed, you may find it difficult to generate new ideas.

I. If you have a problem that seems to have no solution, try these ideas to “unfreeze” your mind:
II. Relax before trying to identify alternatives.
III. Play “what if” games with the problem. For example, What if money was no object? What if we
could organize a festival? What if we could change winter into summer?
IV. Borrow ideas from other places and companies. Trade magazines might be useful in identifying
approaches used by other companies.
V. Give yourself permission to think of ideas that seem foolish or that appear to break the rules.
For example, new recipes may come about because someone thought of new ways to combine
foods. Sometimes these new combinations appear to break rules about complementary tastes
or break boundaries between cuisines from different parts of the world. The results of such
thinking include the combined bar and Laundromat and the coffee places with Internet access
for customers.
VI. Use random inputs to generate new ideas. For example, walk through the local shopping mall
trying to find ways to apply everything you see to the problem.
VII. Turn the problem upside down. Can the problem be seen as an opportunity? For example, the
road outside your restaurant that is the only means of accessing your parking lot is being closed
due to a bicycle race. Perhaps you could see the bicycle race as an opportunity for business
rather than as a problem.

DEVELOPING MEDIATION SKILL AND CODE OF ETHICS;

Mediation is a valuable skill that can help you resolve conflicts, improve communication, and build trust
among different parties. Whether you are a mediator by profession or you want to use mediation in
your personal or work life, you need to constantly develop your skills and knowledge to stay effective
and up-to-date. Here are some of the best ways to do that.

I. Learn from experts

One of the best ways to develop your mediation skills and knowledge is to learn from experts who have
extensive experience and insights in the field. You can do this by attending workshops, webinars,
courses, or conferences that cover various topics and techniques related to mediation. You can also read
books, articles, blogs, or podcasts that feature expert advice and opinions on mediation. Learning from
experts can help you expand your perspective, gain new ideas, and update your skills.

2 .Practice with peers

Another way to develop your mediation skills and knowledge is to practice with peers who share your
interest and passion for mediation. You can do this by joining or forming a mediation practice group,
where you can exchange feedback, challenge each other, and learn from different scenarios and styles.
You can also participate in mediation simulations, role plays, or case studies that allow you to apply your
skills and knowledge in realistic situations. Practicing with peers can help you improve your confidence,
competence, and creativity as a mediator.

3. Reflect on your experience

A third way to develop your mediation skills and knowledge is to reflect on your experience as a
mediator or a participant in mediation. You can do this by keeping a journal, writing a blog, or recording
a video where you document your thoughts, feelings, actions, and outcomes of your mediation sessions.
You can also ask for feedback from the parties involved, your co-mediators, or your mentors on how you
performed and what you can improve.

4. Explore different approaches

A fourth way to develop your mediation skills and knowledge is to explore different approaches that can
enhance your mediation practice. You can do this by studying different models, frameworks, or theories
of mediation that can inform your understanding and strategy. You can also experiment with different
tools, methods, or formats of mediation that can suit different contexts and needs. For example, you
can try online mediation, transformative mediation, or narrative mediation. Exploring different
approaches can help you diversify your skills.

5. Network with others

A fifth way to develop your mediation skills and knowledge is to network with others who are involved
or interested in mediation. You can do this by joining or creating a mediation network, community, or
association where you can connect, collaborate, and support each other. You can also attend or organize
events, activities, or projects that promote mediation and its benefits. Networking with others can help
you expand your opportunities, resources, and influence as a mediator.

6. Seek professional development

A sixth way to develop your mediation skills and knowledge is to seek professional development
opportunities that can advance your career and credibility as a mediator. You can do this by pursuing a
certification, accreditation, or qualification that can demonstrate your competence and quality as a
mediator. You can also seek a mentor, coach, or supervisor who can guide you, challenge you, and
inspire you to grow as a mediator. Seeking professional development can help you enhance your
reputation, recognition, and reward as a mediator.

2. Ethical requirements for the mediator

.1. Independence and neutrality. The mediator must be independent of the influence of third parties on
the procedure and outcome of the mediation. The mediator must be a neutral person who is not
interested in the content of the dispute.

2. Impartiality. The mediator must be impartial in his attitude to the parties, facts, judgments in the
conflict (dispute), consciously setting aside his own stereotypes and his own life experience. The
mediator has no right to assess the behavior and views of the parties to mediation, except for their
explicit violation of legal and / or ethical norms or procedures of mediation.

3. Tolerance and friendliness. The mediator must be tolerant, respect the human dignity of the
participants in the mediation and show equal attention and kindness to the parties to the mediation.

.4. Confidentiality. The mediator must follow all the rules of confidentiality. The mediator maintains the
confidentiality of all information that arises in connection with Mediation, including the fact that
mediation must take place or has taken place, if only in accordance with the law or for reasons of public
policy.

5. Honesty and sincerity of intentions. The mediator should ensure that the parties are properly
informed about the mediation procedure. In every conflict (dispute), the mediator seeks to help its
participants to understand each other and to find a mutually acceptable solution to the conflict (dispute)
in a peaceful and non-violent way.

6. Voluntariness and self-determination of the mediator. A mediator voluntarily participates in

mediation in a specific case. The mediator independently determines the areas of his / her specialization
in mediation and the form of organization of his / her mediation activity in accordance with the
requirements of the legislation. A mediator can provide services in co-mediation (with the participation
of several mediators), if required due to the complexity, specifics of the dispute, the plurality or gender
composition of the parties, the lack of personal experience of the mediator.
7. Training and retraining of a mediator. The mediator should be competent in all matters related to the
mediation procedure, which requires the necessary knowledge, skills and abilities, their continuous
updating and development. The mediator must have a master's degree in mediation or at least 90 hours
of study and 90 hours of practical work. In addition, the competence of a mediator involves the annual
improvement of knowledge and practice of mediation in the amount of 1.5 credits, where 1 credit is
equal to 30 hours. If the mediator was not trained at KROK Business School, the latter undertakes to be
tested and demonstrated his / her mediation skills by a commission consisting of two qualified
mediators who are officially employed by KROK Business School or who teach mediation at KROK
Business School.

8. Ethics of relations between mediators. Relations between mediators should be based on the
principles of mutual respect, respect for the rights of mediators, and adherence to all the basic
principles of mediator ethics provided for in this Code. The mediator must not allow in relation to
another mediator: tactless and derogatory statements, statements that degrade his honor and dignity,
damage his business reputation; dissemination of knowingly false information.

DRAFTING OF AGREEMENTS SANCTITY OF AGREEMENTS;

The present day discourse on the need to evolve Alternative Dispute Resolution mechanisms tends to
focus upon the large, and almost unmanageable, docket of litigation before Courts. The rationale for
ADR is perceived in terms of reducing the arrears of cases in Courts. The premise that is articulated in
the advocacy of ADR is the inability of Courts to handle the existing file of cases. Alleviating the burden
of arrears is undoubtedly one of the important objectives. Yet, particularly in the context of mediation, it
needs emphasis that this is only one of the important objectives. Mediation as a procession intervention
in the legal system fulfills other instrumental and intrinsic functions which are of an equal, if not greater
importance. In its instrumental function, mediation is a means to fulfilling stated objectives. The intrinsic
function of mediation emphasizes the value of mediation as an end in itself. A mediation settlement
agreement is a significant piece of contract that helps in dispute resolution. A mediation settlement
agreement is a document created after a successful mediation. It is a binding contract that outlines the
terms and a condition of the dispute resolution reached by the parties. This agreement is an essential
tool that provides evidence of the parties' agreement and can be enforced in a court of law if necessary.
The mediation settlement agreement serves as proof of the resolution of the dispute and outlines the
obligations of each party involved.

Essential Elements of a Mediation Settlement Agreement;

A Mediation Settlement Agreement in the US must contain several essential elements to be considered
valid and enforceable. These include:

 Identifying the Parties Involved: The agreement must identify the individuals
or entities who are parties to the agreement.
  Terms of the Resolution: The agreement must outline the specific terms of the
resolution, including any actions to be taken, the responsibilities and
obligations of the parties, and any compensation or payments that are part of
the settlement.
 Date and Signature: The agreement must include the date it was signed and
the signature of each party, indicating their agreement to the terms outlined
in the document.
 Consideration: The agreement must state that each party is receiving
something of value in exchange for the promises made in the agreement.
 Governing Law: The agreement must specify the jurisdiction whose laws will
govern the interpretation and enforcement of the agreement.
 Dispute Resolution: The agreement may include provisions for resolving
disputes that may arise in the future, such as arbitration or the requirement to
participate in mediation.
 Termination Provisions: The agreement must specify under what
circumstances the agreement can be terminated or modified.

Contents of a Mediation Settlement Agreement;

 Identification of the Parties; The names and addresses of the parties to the dispute.
 Summary of the Dispute; A brief description of the nature of the dispute.
 Terms of Settlement; The specific terms and conditions under which the parties have resolved
their differences.
 Payment Provisions; Details of any payments that must be made by one party to the other.
 Confidentiality Provisions; A clause restricting the parties from disclosing the agreement's
contents to third parties.
 Governing Law; The jurisdiction that will govern the interpretation and enforcement of the
agreement.
 Signature Blocks; Space for the parties to sign and date the agreement.

Legal enforceability of mediated settlement agreements in India

There isn’t any law in India defining ‘mediation’ however there are diverse references to it. Most
applicable in the context of commercial mediations are the Code of Civil Procedure 1908, and the
Commercial Courts Act 2015. Under Section 89 of the Code of Civil Procedure 1908 which empowers the
court to refer disputes for agreement out of courtroom doors, which includes mediation. The problem
with Section 89 lies in the fact that it mandates that where it appears to the court that there exists an
element of settlement which may be acceptable to the parties, the court shall draft the terms of
settlement and after receiving comments of the parties may reformulate the terms of possible
settlement after which parties may be referred to arbitration, conciliation, judicial settlement or
mediation. In cases of settlements in court-annexed mediations, the settlement is enforced through the
courts as the court passes an order or decree in terms of the written settlement.

When we move to Section 30 of the Arbitration and Conciliation Act, 1996 which encourages settlement
of the disputes is only effective when the parties have chosen to settle a dispute after they have initiated
arbitration proceedings. In case the parties have opted for private mediation with regards to a
mediation clause or otherwise, settlement agreements cannot be treated as arbitral awards. They are
just and forced as contracts between parties. This raises various issues because the settlement
agreement cannot be enforceable as a decree of the court, but it may form the basis of a civil suit, and
then it would dilute the whole purpose of opting for alternate dispute resolution. It can happen even
though the parties have settled the matter. As a result, the weak compliance mechanism negates the
purpose of mediation, making the whole process ineffective. As a result, in India, private mediation is
not preferred. IN some cases, the parties tried to enforce the settlement agreement in accordance with
the law. In Shri Ravi Aggarwal v. Shri Anil Jagota, both the parties agreed to conduct private mediation
and requested that the agreement is so reached, be implemented in accordance with Section 30,
Section 73, and Section 74 of the Arbitration And Conciliation Act, 1996. The court refused because Part
III of the Arbitration and Conciliation Act was only applicable to settlement agreements drawn with
mutual consent by duly constituted conciliation proceedings.

A mediation settlement agreement is a valuable tool for resolving disputes in an amicable and mutually-
acceptable manner. It provides a quicker and less costly alternative to traditional litigation and can help
improve relationships between parties. To be effective, the agreement must be carefully drafted and set
out the terms and conditions under which the parties have resolved their differences.

ENFORCEMENT OF LAWS AND PROCEDURE;

With the increasing popularity of mediation, a growing number of parties to international commercial
contracts conclude multi-tier dispute resolution clauses providing for mandatory recourse to mediation
prior to the commencement of arbitration or court proceedings. When a party disregards such a
requirement and initiates judicial or arbitral proceedings without first seeking a settlement through
mediation, the question arises as to whether the court or arbitral tribunal should decline to hear the
case. In other words, the question is whether the mediation agreement is legally enforceable. Mediation
has historically played a pivotal role in addressing conflicts within our diverse Indian society. Given the
inevitability of disputes in a multifaceted culture like ours, mediation has stood as a testament to the
faith people place in its effectiveness. The Mediation Bill was first introduced in the Rajya Sabha on
December 20, 2021, after which it underwent a thorough review by the Standing Committee. The
committee's 117th Report, released on July 13, 2022, contained specific recommendations regarding the
Bill's provisions, some of which were approved by the Union Cabinet. Consequently, the revised version
of the bill, referred to as the Mediation Bill of 2023, was successfully passed by the Rajya Sabha on
August 2, 2023, and later by the Lok Sabha August 7, 2023. Following Presidential assent, the Bill
became an Act on September 15, 2023, and was officially named the Mediation Act of 2023. Some
portions of the Act came into force on October 9, 2023.

It's clear that previous Acts passed by parliament have consistently reflected aspects reminiscent of
mediation-oriented laws. Notably, Acts like the Legal Services Authority Act of 1987, Micro Small and
Medium Enterprises Development Act of 2006, Companies Act of 2013, and Commercial Courts Act of
2015 all incorporate distinct sections devoted to mediation. This consistent inclusion highlights the
acknowledged importance of mediation within our legal framework. Further, the inception of mediation
centers, exemplified by the Salem Bar Association case, marked a crucial step in this direction. Yet, the
impact was primarily confined to court-annexed mediation proceedings. A paradigm shift has occurred,
manifesting as a faith-infused legal framework for mediation. Parties embroiled in disputes can now
seek resolution with a profound sense of confidence and trust, underpinned by this transformative
mediation law. In a significant stride towards enhancing dispute resolution mechanisms, the Mediation
Act brings to light several pivotal provisions that promise to reshape the landscape of conflict resolution
in India. At its core lies confidentiality which is the backbone for smooth and neutral functioning of
mediation, to the extent that under section 23 communications within mediation cannot be admissible
as evidence in any court proceedings including arbitration. Even under section 17 mediator is barred
mediator is barred from acting as an arbitrator in the same case in which he had been a mediator. The
emphasis on confidentiality holds immense significance, particularly in the Indian context where a
substantial number of cases settled through mediation are family cases. Ensuring the confidentiality of
these proceedings creates an environment where parties can candidly express themselves, facilitating a
smoother and more efficient process overall. Another notable provision is the reduction in the time
limit for a mediation to be completed. In the earlier Bill of 2021, the time limit was 180 days which could
be further extended up to 60 days but in section 18 of the 2023 Act, it has been reduced to 120 days
which can be further extended up to the period of 60 days making it 180 days in total. This reduction in
the time limit will further cater to the fast and timely disposal of the dispute. The Act has also made the
whole process more voluntary as under section 24, parties can opt out at any time during the
proceedings to terminate the mediation. In the earlier Act of 2021, there was a bar of at least two
sessions that had to be attended by the parties in order to terminate the proceedings. Further,
introduction of community mediation, under Part XI of the Act, offers an avenue for settling disputes
affecting peace, harmony, and tranquility within local communities with prior mutual consent of the
parties to the dispute. However, the settlement agreement made out of community mediation is not
binding on any of the parties and therefore cannot be enforced. The Act also gives an equal footing to
Online Dispute Resolution (ODR) under Section 30, reflecting the Act's modern approach, allowing for
mediated settlements in the digital realm. It can be conducted at any stage of meditation giving more
flexibility to the whole mediation process. As a unique system, the Act introduces setting up of the
mediation council under Part VIII to regulate and promote mediation, ensuring adherence to standards
and accreditation of mediators and mediation service providers. One of the most celebrated provisions
brought by the Act is the legal status given to mediation settlement agreements (MSAs) which under
Section 27 can be enforced like court judgments, enhancing the enforceability of mediated settlements.
This maintains the authenticity of mediation and makes the whole process worthy of opting. Although
under section 29 of the Act, there are some grounds on which the MSA can be challenged such as if the
agreement is reached through fraud, corruption, impersonation etc.

It can be concluded that each remedy has its own advantages and limitations
depending on factors such as urgency, need for review, and potential complexities involved in each case.
By thoroughly examining all available options and weighing these factors against their specific
circumstances, litigants can make an informed decision on which gate would be most suitable for
accessing justice in their particular situation. At last, litigants should also keep themselves informed
about any changes or updates in legislation that could impact their accessibility to justice, along with
keeping a close supervision on the laws laid by the Hon'ble Courts of India concerning the three
avenues. This would enable the litigants to make well-informed and timely choices.

GROWTH OF VIRTUAL DISPUTE RESOLUTION

The advent of the internet facilitated virtual business transactions, connecting individuals across diverse
locations and jurisdictions. This gave rise to a surge in cross-border disputes, prompting private
organizations to develop innovative resolution techniques. EBay pioneered this effort in 1999 by
introducing an online complaint filing system that initiated a settlement process. If the settlement was
unsuccessful, an automated online mediation process followed. This model, evolving into more
sophisticated variants, is now widely embraced by private organizations and states alike, commonly
known as Online Dispute Resolution (ODR). ODR systems efficiently diagnose issues and employ
automated negotiation, mediation, or arbitration to facilitate resolution.

Types of online dispute resolution

According to I Made Widnyana, Online Dispute Resolution consists of 3 (three) types of dispute
resolution, including online negotiation, online mediation, online arbitration, or even a combination of
the three.

1. Online negotiation
Online negotiation is a simpler method than conventional negotiation, because its application
utilizes electronic media and internet networks. Online negotiation does not require direct
confrontation, so this will make it easier and simpler which will result in saving on the cost of
settling cases (Sagala & Marpaung, Citation2021). The disputing parties only need to choose the
electronic means that will be used as an Online Dispute Resolution facility to be able to
negotiate.

.2. Online mediation

Online mediation is a mediation process that uses electronic means where a neutral third party is
involved to facilitate dispute resolution between the parties. For example, SquareTrade was founded in
1999 which offers online mediation services for e-commerce consumer disputes and works with several
online businesses such as eBay and PayPal. (Zheng, Citation2020). The existence of this service will
benefit online business users who are in various regions because mediation can be carried out in their
respective places through the facilities provided by the service provider.

In online mediation, service providers will prepare communication devices connected to the internet
network, which can integrate e-mail with other features, such as e-mail, instant messaging, chat
conference rooms, audio conferencing, and video conferencing (Wang, Citation2009). Thus, this will
reduce obstacles in resolving disputes due to regional differences, while increasing the flexibility of the
mediation itself.

3. Online arbitration

Online arbitration utilizes technological facilities and the internet network as a meeting place for the
parties to the dispute and the arbitrator as a third party. Its application is also carried out with the prior
consent and agreement of the parties to the dispute (Sagala & Marpaung, Citation2021). In practice, the
parties may apply to the arbitral institution that provides Online Dispute Resolution services.

4. Hybrid

Jie Zheng in their book entitled “Online Resolution of E-Commerce Disputes” calls the combination of
the three forms of Online Dispute Resolution as a hybrid ODR. This understanding leads to a
combination of various dispute resolution mechanisms in order to achieve efficient and effective dispute
resolution. The parties agree that if a dispute arises, they will follow several stages with different
procedures such as online negotiation, online mediation, and even if necessary, arbitration will be
carried out (Zheng, Citation2020).

Online dispute resolution principles and minimum standards

There are several principles for implementing dispute resolution through ODR

a. Process guaranteed confidentiality;

b. Protection for the parties to the dispute;

c. Transparent mechanism;

d. Equality of position of the parties to the dispute;

e. Safe system.

Method;

The method used in writing this paper is a socio legal method. In this case there are two aspects of
research, namely the legal research aspect, where the object of research remains in the form of law in
the sense of “norm” and socio research, namely the use of methods and theories of social science about
law to help researchers carry out analysis (Zaroni, Citation1992). Through socio-legal studies, it is hoped
that from researches conducted, it will be known whether there are positive laws or laws that are born
from patterns of relations between subjects in society, especially the parties involved in resolving
disputes using mediation in Indonesia. This study tries to identify existing legal issues, online mediation
mechanisms, legal consequences, and the problems that surround them.

This study uses a qualitative method. The use of qualitative methods is expected to find hidden
meanings behind the research subject. This research begins with secondary data as initial data, then
continues with primary data or field data. The sample to become an informant is determined
purposively, where the number of informants is not determined in a limiting manner but follows the
snowball principle, according to the need for informants in the research reality. The data collection
technique used was in-depth interviews with mediation institutions in Indonesia using the sampling
method and several mediators in Indonesia. IN collecting data used in this research, the authors
conducted research in various alternative dispute resolution institutions in Indonesia, namely Indonesia
Dispute Board, Walisongo Mediation Center, and Pusat Hukum & Resolusi Konflik PURAKA. The data was
collected through interview method with certified mediators at these institutions. The authors chose
these institutions as they have implemented Online Dispute Resolution in various cases, therefore
experiences faced might differ from one another in line with differences in cases and differences in
clients handled. .

The effect of the online dispute resolution system on enhancing the mediation framework

The current developments have brought many changes in various aspects of life, including the birth of
the Online Dispute Resolution in resolving disputes that occur in society. Online Dispute Resolution is a
dispute resolution that is carried out through internet media where the process is carried out by parties
who are across regions or countries who do not have to meet face to face. Furthermore, Online Dispute
Resolution is like any other traditional dispute resolution, where the difference lies only in the media
used. Dispute resolution using Online Dispute Resolution has several advantages, such as saving time
and costs, convenience in the process, and the freedom to choose a neutral third party. This proves that
online dispute resolution can streamline time and costs for the parties to the dispute, considering that
these parties are dominated by people who are highly busy, so that the existence of this Online Dispute
Resolution can provide freedom for each party to determine time to resolve existing disputes or can be
said to be flexible. Besides that, the use of the online system also makes it easier for parties to exchange
ideas without feeling intimidated or cornered. However, besides having advantages, the implementation
of this Online Dispute Resolution also has several drawbacks, especially because of the development
factor which can still be said to be new. The drawback is that there is a potential difference in perception
that is owned because dispute resolution is not done directly and is only done online. In this case, it
shows that the implementation of Online Dispute Resolution has less intensity, thus causing no
spontaneity and responses given by the parties involved. It cannot be covered, that dispute resolution
will be more effective if it is done by communicating directly and avoiding misunderstandings in the
settlement process. In fact, in mediation, the mediator plays a major role in creating an unemotional
atmosphere. The mediator functions to control the emotions of the parties so that negotiations can take
place properly. To achieve this, body language is an important factor that needs attention. Currently
available technology, from the author’s point of view, has not been able to assist the mediator in
reading the body language of the disputing parties. This issue is a big challenge because the mediation
process requires deep personal relationships. With text-based communication without face-to-face
meetings, the parties basically never know who is behind the scenes and what each party’s true
intentions are. Texts typed online and sent by machine can do nothing but capture a person’s emotions,
feelings and desires. What could be seen were only a few words written by “someone”. For example, if
done via e-mail, then people usually try to sound more professional, solid and reliable when writing the
e-mail. In other words, people usually use standard templates and set of phrases, which include formal
words and expressions with no practical meaning and thus useless for the other party and the mediator
to identify their true intentions. Furthermore, for all forms of Online Dispute Resolution, the technology
and internet gap is still a significant problem. The drawback of implementing Online Dispute Resolution
is influenced by internet interference. This of course can be a fatal problem considering that Online
Dispute Resolution requires the internet to run properly. Despite being one of the countries with the
most internet users in the world, there is still a digital gap, where there are still many areas in Indonesia
that have not been properly reached by internet networks. In fact, online mediation as a means of
obtaining justice should be utilized by anyone. This of course will be inversely proportional to the
principle of justice that should be felt by everyone. This is also related to the control of the mediator
over the parties. Related to the use of technology itself, the mediator will find it difficult to exercise
control over the parties. In this case, if the flexibility of communication that can be done anywhere is
one of the advantages of online mediation, this can also be a challenge for the mediator. For example, if
done via e-mail, the parties will need time to read the message and compose their reply. This has the
potential to delay the process simply because of the inability of the parties to keep up with the speed of
the procedure. The main reason is the lack of temporal discipline on the part of the parties which is
beyond the reach of the mediator. This lack of effective controls is another drawback of online
mediation. Since the means of communication are beyond the control of the mediator, nothing can be
done to ensure the compliance of the parties, thus, the parties may communicate with each other and
escalate the conflict, without the mediator even knowing what is going on. The current developments
have brought many changes in various aspects of life, including the birth of the Online Dispute
Resolution in resolving disputes that occur in society. Online Dispute Resolution is a dispute resolution
that is carried out through internet media where the process is carried out by parties who are across
regions or countries who do not have to meet face to face. Furthermore, Online Dispute Resolution is
like any other traditional dispute resolution, where the difference lies only in the media used. Dispute
resolution using Online Dispute Resolution has several advantages, such as saving time and costs,
convenience in the process, and the freedom to choose a neutral third party. This proves that online
dispute resolution can streamline time and costs for the parties to the dispute, considering that these
parties are dominated by people who are highly busy, so that the existence of this Online Dispute
Resolution can provide freedom for each party to determine time to resolve existing disputes or can be
said to be flexible. Besides that, the use of the online system also makes it easier for parties to exchange
ideas without feeling intimidated or cornered. However, besides having advantages, the implementation
of this Online Dispute Resolution also has several drawbacks, especially because of the development
factor which can still be said to be new. The drawback is that there is a potential difference in perception
that is owned because dispute resolution is not done directly and is only done online. In this case, it
shows that the implementation of Online Dispute Resolution has less intensity, thus causing no
spontaneity and responses given by the parties involved. It cannot be covered, that dispute resolution
will be more effective if it is done by communicating directly and avoiding misunderstandings in the
settlement process. In fact, in mediation, the mediator plays a major role in creating an unemotional
atmosphere. The mediator functions to control the emotions of the parties so that negotiations can take
place properly. To achieve this, body language is an important factor that needs attention. Currently
available technology, from the author’s point of view, has not been able to assist the mediator in
reading the body language of the disputing parties. This issue is a big challenge because the mediation
process requires deep personal relationships. With text-based communication without face-to-face
meetings, the parties basically never know who is behind the scenes and what each party’s true
intentions are. Texts typed online and sent by machine can do nothing but capture a person’s emotions,
feelings and desires. What could be seen were only a few words written by “someone”. For example, if
done via e-mail, then people usually try to sound more professional, solid and reliable when writing the
e-mail. In other words, people usually use standard templates and set of phrases, which include formal
words and expressions with no practical meaning and thus useless for the other party and the mediator
to identify their true intentions Furthermore, for all forms of Online Dispute Resolution, the technology
and internet gap is still a significant problem. The drawback of implementing Online Dispute Resolution
is influenced by internet interference. This of course can be a fatal problem considering that Online
Dispute Resolution requires the internet to run properly. Despite being one of the countries with the
most internet users in the world, there is still a digital gap, where there are still many areas in Indonesia
that have not been properly reached by internet networks. In fact, online mediation as a means of
obtaining justice should be utilized by anyone. This of course will be inversely proportional to the
principle of justice that should be felt by everyone. This is also related to the control of the mediator
over the parties. Related to the use of technology itself, the mediator will find it difficult to exercise
control over the parties. In this case, if the flexibility of communication that can be done anywhere is
one of the advantages of online mediation, this can also be a challenge for the mediator. For example, if
done via e-mail, the parties will need time to read the message and compose their reply. This has the
potential to delay the process simply because of the inability of the parties to keep up with the speed of
the procedure. The main reason is the lack of temporal discipline on the part of the parties which is
beyond the reach of the mediator. This lack of effective controls is another drawback of online
mediation. Since the means of communication are beyond the control of the mediator, nothing can be
done to ensure the compliance of the parties, thus, the parties may communicate with each other and
escalate the conflict, without the mediator even knowing what is going on.

UNCITRAL MODEDL OF LAW AND SINGAPORE CONVENTION ;

The UNCITRAL Model Law on International Commercial Arbitration[1] is a model law prepared by
UNCITRAL, and adopted by the United Nations Commission on International Trade Law on 21 June 1985.
In 2006, it was amended and now includes more detailed provisions on interim measures. The model
law is not binding, but individual states may adopt the model law by incorporating it into their domestic
law (as, for example, Australia did, in the International Arbitration Act 1974, as amended).
UNCITRAL and the Law Council

The Law Council has recognized the important work being undertaken by Australian lawyers in relation
to UNCITRAL’s activities by supporting the creation of an UNCITRAL Coordinator in Australia in 2013.

Australian lawyers have an interest in developing harmonized laws to minimize transaction costs in
international trade, as well as supporting developing nations in our region to participate in the
expanding global economy through the adoption of uniform trade law texts of the type developed by
UNCITRAL.In 2012 the RACP commissioned Sydney solicitor and barrister Tim Castle to provide a report
on strategic opportunities for increased participation by Australia in the work of UNCITRAL, in the
development, adoption and implementation of uniform trade laws, both in Australia and in our region.
The decision to establish an UNCITRAL Coordinator was a direct result of consultations between Mr.
Castle, the Law Council, the Australian Government and other stakeholders, in connection with that
report. Subsequently in September 2013, Mr. Castle subsequently took up the honorary role as
UNCITRAL Coordinator role, and is supported in this role by a Committee comprising representatives of
the Law Council, as well as leading practitioners and academics interested in the work of UNCITRAL. The
United Nations Commission on International Trade Law (UNCITRAL) has drafted procedural rules upon
which parties may agree for the conduct of arbitral proceedings. The original UNCITRAL Arbitration Rules
were adopted in 1976 and have been used for the settlement of a broad range of disputes, including
disputes between private commercial parties where no arbitral institution is involved, investor-State
disputes, State-to-State disputes and commercial disputes administered by arbitral institutions. In 2010,
the UNCITRAL Arbitration Rules were revised in order to meet changes in arbitral practice since their
initial promulgation. The revised UNCITRAL Arbitration Rules have been effective since 15 August 2010.
The United Nations Commission on International Trade Law (UNCITRAL) has drafted procedural rules
upon which parties may agree for the conduct of arbitral proceedings. The original UNCITRAL Arbitration
Rules were adopted in 1976 and have been used for the settlement of a broad range of disputes,
including disputes between private commercial parties where no arbitral institution is involved, investor-
State disputes, State-to-State disputes and commercial disputes administered by arbitral institutions. In
2010, the UNCITRAL Arbitration Rules were revised in order to meet changes in arbitral practice since
their initial promulgation. The revised UNCITRAL Arbitration Rules have been effective since 15 August
2010. It contains the first formulation of the three fundamental principles of technology neutrality,
nondiscrimination and functional equivalence in electronic media for paper-based concepts such as
"writing", "signature" and "original”. The Model Law is designed to assist States in reforming and
modernizing their laws on arbitral procedure so as to take into account the particular features and
needs of international commercial arbitration. It covers all stages of the arbitral process from the
arbitration agreement, the composition and jurisdiction of the arbitral tribunal and the extent of court
intervention through to the recognition and enforcement of the arbitral award. It reflects worldwide
consensus on key aspects of international arbitration practice having been accepted by States of all
regions and the different legal or economic systems of the world. Amendments to articles 1 (2), 7, and
35 (2), a new chapter IV A to replace article 17 and a new article 2 A were adopted by UNCITRAL on 7
July 2006. The revised version of article 7 is intended to modernize the form required of an arbitration
agreement to better conform with international contract practices. The newly introduced chapter IV A
establishes a more comprehensive legal regime dealing with interim measures in support of arbitration.
As of 2006, the standard version of the Model Law is the amended version. The original 1985 text is also
reproduced in view of the many national enactments based on this original version.

SINGAPORE CONVENTION

The Singapore Convention on Mediation (the “Singapore Convention” or “Convention”) is a multilateral

treaty which offers a uniform and efficient framework for the enforcement and invocation of
international settlement agreements resulting from mediation. It applies to international settlement
agreements resulting from mediation, concluded by parties to resolve a commercial dispute. The
Singapore Convention will facilitate international trade and commerce by enabling disputing parties to
easily enforce and invoke settlement agreements across borders. Businesses will benefit from mediation
as an additional dispute resolution option to litigation and arbitration in settling cross-border disputes.
Signing the Convention is therefore a strong statement of a country’s commitment to trade, commerce
and investment, and strengthens its position in the field of international trade law.

Status of Convention

46 countries, including the world’s two largest economies – the United States and China – as well as
three of the four largest economies in Asia – China, India and South Korea – signed the Convention on
the day it opened for signature. Another 24 countries attended the signing ceremony in Singapore to
show their support for the Convention. On 25 February 2020, Singapore and Fiji became the first two
countries to deposit their respective instruments of ratification of the Convention at the United Nations
Headquarters in New York. With the third instrument of ratification deposited by Qatar on 12 March
2020, the Convention entered into force on 12 September 2020.As of 11 April 2024, the Convention has
55 signatories, of which eight are parties to the Convention. A full list of signatories and parties to the
Convention can be found here.

The Convention aims to address the lack of a process by which settlement agreements can easily
be recognized and enforced internationally. Currently such settlements have the status of contracts only
and require further court proceedings to force compliance should one party fail to abide by the terms
agreed.

The Singapore Convention on Mediation (the "Singapore Convention" or "Convention") is a uniform and
efficient framework for international settlement agreements resulting from mediation. It applies to
international settlement agreements resulting from mediation, concluded by parties to resolve a
commercial dispute.

The United Nations Convention on International Settlement Agreements Resulting from Mediation, also
known as the Singapore Convention on Mediation (the “Convention”), is an important step forward in
the promotion of mediation as a tool for the resolution of international disputes as it paves the way for
settlements reached by mediation to be recognized internationally. The Convention officially opened for
signature on 7 August 2019, since then 57 countries have signed, with signatory states reaching from
Afghanistan to Venezuela and including the U.S., Singapore and China, all significant global commercial
partners.

The Convention came into effect on 12 September 2020 for Singapore, Fiji and Qatar, the first three
states to ratify. Since then, it has also come into force for Saudi Arabia, Belarus, Ecuador, Honduras,
Turkey, Georgia, Kazakhstan and Uruguay. It will come into effect in Japan and Nigeria in the next few
months. Although important jurisdictions such as Canada and the EU are still to join, the Convention was
bolstered recently with the signature of the UK, although no date has been set for ratification. The
Convention aims to address the lack of a process by which settlement agreements can easily be
recognized and enforced internationally. Currently such settlements have the status of contracts only
and require further court proceedings to force compliance should one party fail to abide by the terms
agreed. Where the parties are international, this means potentially litigating in a foreign state to enforce
the agreement. Under the Convention, parties will be able to apply directly to the courts of party states
which have also ratified the Convention to enforce settlement agreements resulting from mediation,
without needing to initiate new proceedings. UNCITRAL, which has developed the Convention, hopes
that it will make settlements resulting from mediation much easier to enforce, akin to the New York
Convention for arbitral awards, thereby promoting mediation as a mechanism for international dispute
resolution.

END