CENTRAL UNIVERSITY OF SOUTH BIHAR

ALTERNATE DISPUTE RESOLUTION

Topic- Difference between different modes of

Alternate dispute resolution

Submitted By- Submitted To-

Naman Raj Dr. Anurag Agrawal
Enrol. No.- CUSB2013125074 Assistant Professor
Section- B, B.A.LL.B.(hons.) SLG, CUSB
Sem- 8th (2020-25)

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 ACKNOWLEDGEMENT

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

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 TABLE OF CONTENTS

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

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 INTRODUCTION

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

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

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

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

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DIFFERENT TYPES OF ALTERNATIVE DISPUTE RESOLUTIONS

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

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ARBITRATION

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

There are four requirements of the concept of arbitration:

an arbitration agreement;

a dispute;

a reference to a third party for its determination;

and an award by the third party.

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

Types of arbitration are:

Ad Hoc Arbitration

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

Institutional Arbitration

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

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

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

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

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

Statutory Arbitration

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

Fast track arbitration

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

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

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CONCILIATION

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

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

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

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

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MEDIATION

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

disputes. It is a simple, voluntary, party centered and structured negotiation process, where
a neutral third party assists the parties in amicably resolving their disputes by using
specified communication and negotiation techniques. Mediation is a process where it is
controlled by the parties themselves. The mediator only acts as a facilitator in helping the
parties to reach a negotiated settlement of their dispute. The mediator makes no decisions
and does not impose his view of what a fair settlement should be13. In the mediation
process, each side meets with a experienced neutral mediator. The session begins with
each side describing the problem and the resolution they desire – from their point of view.
Once each sides’ respective positions are aired, the mediator then separates them into
private rooms, beginning a process of “Caucus Meeting” and thereafter “joint meetings
with the parties”. The end product is the agreement of both the sides. The mediator has no
power to dictate his decision over the party. There is a win – win situation in the mediation.
The chief advantages of the mediation are14 :
1. The agreement which is that of the parties themselves;
2. The dispute is quickly resolved without great stress and expenditure;
3. The relationship between the parties are preserved; and
4. The confidentiality is maintained.

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

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JUDICIAL SETTLEMENT

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

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

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LOK ADALAT

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

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

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

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DIFFERENCE BETWEEN THE MEDIATION AND OTHER DISPUTE
RESOLUTION PROCESS

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

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

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

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

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THE DIFFERENCE BETWEEN CONCILIATION AND MEDIATION

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

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

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

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

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DIFFERENCE BETWEEN THE MEDIATION AND ARBITRATION

TOPIC MEDIATION ARBITRATION

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

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DIFFERENCE BETWEEN THE MEDIATION AND LOK ADALAT

TOPIC MEDIATION LOK ADALAT

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

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CONCLUSION

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

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BIBLIOGRAPHY

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

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