ADR: An Attempt to Achieve Constitutional Goal of Complete Justice in India by Dr. Madabhushi Sridhar, Faculty, NALSAR

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ADR: An Attempt to Achieve

Constitutional Goal of Complete Justice in India


- Dr. Madabhushi Sridhar, Faculty, NALSAR



            The Alternative Dispute Resolution mechanisms evolved to provide complete justice to the persons in conflicts and legal disputes. It is a voluntary process gaining legal recognition over a period of time. The ADR is at present a movement all over the world to find an answer to never ending litigation and never reaching solutions, which is a global phenomenon. The society, state and the party to the dispute are equally under an obligation to resolve the dispute before it disturbs the peace in the family, business community, society or ultimately the humanity as a whole. Because in a civilized society the rule of law should prevail and principles of natural justice should apply and complete justice should result.


Rule of Law


It is the fundamental need of democracy to secure the rule of law. La principe legalite= governance not by persons but by principles. It is the dynamic concept of supremacy of law, i.e., law rules, it imposes negative constraints on government action and also an affirmative duty of fairness, and in the context of judiciary, rule of law means independent judiciary.



Principles of Natural Justice

The Rule of law and principles of natural justice are inherently related to each other.It is protection from excesses of power by the authorities or who are in a commanding position. It means fairness, equity and equality, reasonableness.  It is also called natural law.


Constitutional Foundation

These principles do have constitutional foundation. The Article 21s and 14 of Constitution of India embody these principles of natural justice and rule of law. These Articles incorporate substantial and procedural due process. Fairness when accused is deprived of liberty Article 21.  Absence of discriminatory class legislation article 14




The sole basis of ADR is founded in two basic principles. They are: 1. Nemo judex in causa sua= no one should be made a judge in his own cause (rule against bias) and 2. audi alterum partem (hear the other side)


The enemy of justice is the Bias, which is of four kinds: 1-pecuniary interest or 2.personal interest,a) by blood relation or b) marital relations, c) friendship, 3. Hostility

4. Official Bias, 5. Subject Matter Bias


Rule of fair hearing

No one can be deprived of his vested right or be punished without having been given opportunity to offer an explanation. Every person has a Right to notice,  a Right to present cases and evidence and a right to rebut adverse evidence, no evidence should be taken on the back of other party.


Audi alteram partem


The maxim in its wider import means that the Report of the enquiry to be shown to the other party, reasoned decisions or speaking orders should be given and very importantly, there should be institutional decisions, OR ONE WHO DECIDES MUST HEAR. It is a rule against dictation.

The Notice must be adequate. The Art 22(5) makes every person entitled to know reasons, and to represent, which is again supported by another Art 311(2) which protects the rights of employees in government by providing procedural safeguards as an exception to doctrine of pleasure indicating the powers of the President or Executive.


Procedural due process

These two principles are embodied in all procedural laws like Cr.P.C. and Civil Procedure Code. The Notice, summons, exchange of information in the shape of pleadings, discovery proceedings, fixing issues, examination of witnesses, arguments and judgments are the explanations of the expanding need for giving notice to the parties to disputes. The Procedural due process is must in resolving disputes, whether in litigative or alternative methods. 


Problems in Litigation

Then these procedural safeguards and natural principles of justice when enforced by the state resulted in severe problems in resolving the litigation. They are: 1. Inordinate delay, 2. Escalating costs, 3. Mounting arrears, 4. Pervasive corruption, 5. Inequities in system.


Merits of ADR, mediation


§         Not just another mechanical process of Dispute Resolution

§         Not just an activist legal aid philosophy

§         It will promote rule of law in society

§         Promote people’s participation

§         Promote self-reliant development

§         Create legal awareness and respect for rights of others


Dispute Resolution


The Dispute Resolution is of two kinds - Litigative and non-litigative

§         Non-litigative is the future dispute resolution mechanism.

§         It involves collection of strategies outside usual processes of litigation

§         Because the Perils of litigation are: litigation is expensive, open, uncertain as to time and decision, denies parties control in resolving

§         And finally the lawsuit is dreaded beyond sickness & death


Creative Dispute Resolution

§         It can be formal or informal, whatever you can do to stay out of court

§         like open door policy or mass tort claim settlement protocol

§         arbitration, negotiation and mediation grown and blended into dozens of variations

§         early neutral evaluation, summary jury trial, minitrial, med-arb, court annexed processes such as judicially hosted settlement, judicial arbitration, temporary judging



         It is a communication process



         control over procedure and outcome

         wide range of possible solutions, maximise joint gains

         quick, inexpensive, private, less complicated


Negotiation is possible..

         where parties must cooperate to meet goals

         parties can influence each other to act in ways that provide mutual benefit or avoidance of harm

         parties are affected by time constraints

         parties can identify and agree on issues

         interests not entirely incompatible

         external constraints (reputa, cost, risk of adversarial decision) encourage ADR


The Negotiation works when

a)     The parties are willing to cooperate and communicate to meet their goals,

b)     The parties can mutually benefit or avoid harm by influencing each other

c)      The parties know that they have time constraints

d)     The parties realize that any other procedure will not produce desired outcome

e)     the parties can identify on what issues require to be sorted out

f)        the parties also agree that their interests are not incompatible to each other

g)     the parties knew that it is preferable to participate in private cooperative process rather than go through severe external constraints like loss of reputation, excessive cost, and possibility of adversarial decision


e) A Mixed Motive Exchange:

Negotiation is a mixed motive exchange. The motives of both the parties get mixed and proposed to be exchanged. Interests are combined and addressed together. The value is shared and before that additional values are also created. First the parties to the dispute understand each other, the problem and the ultimate interests and sit together to resolve with maximized benefits possible.

The concept of Mixed Motive exchange can be explained with following prepositions.

1)     There are two options for bargainers to choose- either to compete or cooperate.  The competitive bargaining may be required to avoid exploitation, while the method of cooperation is needed to maintain relationship. If the bargainers consider avoidance of exploitation as the most important priority, he may begin with the competitive attitude. If he considers the relationship is essential to built long-term contracts and business along with the peace, the cooperative attitude alone is preferred.

2)     The Competitor negotiator may require or drive for an individual win, the existing value is claimed here by the parties.

3)     The Cooperative bargainer is different. He prefers joint gain, in addition to existing value an additional value is created in cooperation.


The Needs of Good Negotiator:

A good negotiator should know his subject intimately, should become expert, manifest a sense of personal integrity, should know how to exploit power. The negotiation is combination of all skills, and continuous practice of those skills.



The ‘do’s for the negotiator are as follows:


a)     What do you want to achieve?

b)     Check your assumptions- are they wrong?

c)      Stick to facts, research and collect data. Brainstorm (generating lots of ideas without evaluating them) may generate data.

d)     Define the issues, Decide on your position

e)     Determine your position, opponents needs and determine your strategy.


k) How to make concessions

Though the negotiation means series of concessions and mutual respect of interests there is a method for making those concessions. They are:

a)     Start out tough, and weaken systematically

b)     Make smaller concessions than opponent

c)      Avoid making frequent concessions unless it is absolutely necessary

d)     Curb the instinct to be excessively friendly

e)     Retain sufficient ground for a final commitment.


l) Tactics used by Negotiator:

The whole success of the negotiation depends on how the negotiator uses his cards, adopts relevant strategies and tackles the other party’s interests. The skilled negotiator do not use predictable tactics. He will set out very good and effective opening tactics. In fact, from the opening move the negotiator can visualize the end result and also understand the range of the opponent from his opening step.


An effective communicator combined with skills of comprehending the whole problem include the interests of the opponent will be a very good negotiator.  For that a personal relationship building, an eye contact, required silence at relevant times, efficient justification of offers are needed. The requirement  vary from culture to culture, issue to issue and person to person. This requires self awareness.


m) Right place & environment:

The negotiator has to choose right environment and familiar territory. Home territory is always preferred, unless there are any compelling reasons. One should see that person sits by the side of his greatest opponent. It is making the opponent a neighbour. It will be difficult to be belligerent with neighbour. Very sitting position and making rivals neighbours brings in new atmosphere and a thought provoking environment. One should not put a barrier of table between disputants. It is also suggested that a business lunch might be helpful.



            It is always needed for a good negotiator to know the best and worst alternatives for the process of settlement he is striving to achieve at. The Best Alternative to Negotiated Settlement and the Worst Alternative to Negotiated Settlement are significant points a negotiator is supposed to find out and discuss at every level of discussion. If not discussing, he should be conscious about it. Such an understanding will guide him properly to steer through the difficulties.



         Negotiation facilitated by a third party

         private, voluntary, informal and nonbinding cost effective

         various forms of mediation

         provide environment for constructive communication

         in early colonial America, M was dominant DR, Child custody and visitation are mediated even now in many states


a) What is mediation?

The mediation is a process, a facilitation, an empowerment. The core value in mediation is that the process provides the parties with an opportunity to negotiate, converse and explore options aided by a neutral third party, the mediator, to exhaustively determine if a settlement is possible. It is a process of empowerment of the parties to control their destiny in their dispute.

Mediation involves a determination of interests – the interests of the parties. A concept frequently not found in the litigator’s lexicon, interests are the needs, wants, and desires that are of importance to the parties – the answer to the question “what is this dispute really all about for you?” To get there, mediation provides a forum for principled negotiations. These negotiations may at times become frustrating and troubling, but with the mediator’s help the parties keep moving forward. Principled negotiations stimulate exploration of settlement alternatives and an opportunity to evaluate those alternatives, weighing them against the likely outcome of going to trial and viewing proposals through the lenses of reality. Mediation - compared to litigation, trial and appeal – is a veritable bullet train to certainty and finality. If the dispute settles at the mediation, it settles on a basis acceptable to the parties; the specter of trial is removed; and, the threat of being tied up on appeal is eliminated.

Strategies and Methods:

  1. Seating the participants: in proximate distance with the mediator.
  2. Opening Statement of Mediator
  3. Introduction of Participants
  4. Commend them for willing to cooperate
  5. Explain mediation process and goals
  6. Establish ground rules for confidentiality -caucusing
  7. Manner for presenting arguments,
  8. Finally obtain joint agreement to begin.
  9. Collect opening statement of parties
  10. Organize composite list of issues, written submissions, opening statements are important.


Role of mediator: Mediation is accepted as the most viable process of resolving a conflict between two parties before any legal or physical conflict is opted for settling the score for any kind of problem. The major difficulty is getting the parties to agree to prefer the mediation as the process for resolving their problems. As this is known as assisted negotiation or structured negotiation, it is basically a necessary assistance to the negotiators who are the parties themselves. From the voluntary submission to the drafting of settlement agreement, the parties have a major role in  mediation rather than the role of mediator himself. The mediator facilitates, renders assistance, gives advise if necessary, presents options available, analyses the strategies, suggests strategies to be adopted, hammers out the issues to be settled, drafts the agreement sentences so that the parties do not find any difficulty in agreeing with them and finally authorizes the settlement. The mediator does not settle. He will not give an award like an arbitrator. He also does not prefer to adjudicate the issues. He will also not prescribe the procedure. He does not examine the witnesses and insist on the production of evidence etc.

Convening for Mediation: The mediator may have to plan very carefully the best strategy to bring the parties to the table of discussion. If one of the parties not ready to send invitation to the other, it is for the provider to initiate an invitation to the parties. If the parties are rigid about going to the opponent, it is for the provider to find a suitable seat of negotiation in his presence or absence, which does not create problems for either of the parties. Whether the initial meeting should be between himself and one of the parties separately or a joint meeting with both the parties? It is the question to be decided depending upon the circumstances and attitudes of the parties.

Flexible Process: There is no rigid frame work of rules for mediation. It is a very flexible process. A person who is acceptable to both the parties would serve as mediator. He is perceived as neutral capable of understanding the issues of their dispute and knowledgeable enough about the mediation processes along with sense of time and attitude to resolve the problems. 

It is important to decide on the cost of the mediation at the beginning itself. The Mediator should indicate the possible cost and obtain the consent of parties to share the cost equally. If not the cost of mediation would become an issue of  conflict to be mediated between the mediator and the party.

Issues to be discussed: The parties also should decide on the procedure of mediation. In this endeavour, the parties may state what issues need to be discussed and what should be avoided. There also a need to decide about the privacy or secrecy or confidentiality of certain procedures or aspects of the negotiable issues of the dispute.

With the assistance or guidance or knowledge of the mediator, the parties should decide on what issues to be discussed what not to be. Generally in family matters the mediation between spouses would bring out such problems. The spouses may agree on discussion about custody of children and distribution of the joint party or maintenance amount. At the same time they may not agree on discussing the relationships they have with other persons.

Necessary Parties: The parties have to recognize all the necessary parties, who are either involved or interested or might be affected by the decision on the issues before them. If a necessary party is not joined, the decision may not be binding on him and entire process may go waste. The persons who are capable of making commitments may be the parties to the process. It is also necessary to decide in advance whether the parties will represent themselves or be represented by the counsel. 

Initial Steps:  The mediator has certain hard tasks before him at the initial stages of mediation. He has to contact the distant and complex parties at their places and convince them about the uses and benefits of the mediation, in comparison with the other processes. Mediator has to build necessary credibility and atmosphere to say that he has enough of courage and credibility to assist in resolution of the dispute. Besides this, mediator has to establish a rapport between the disputants.  He has to exhibit his personal credibility, build institutional credibility and prove the procedural credibility also, so that parties are ready to establish the rapport between them.

The Beginning: The beginning of mediation session is very important. The atmosphere of the first session sets the  necessary atmosphere for resolution.  The greeting and seating of participants, their strategic location around the table, either across or along with others, the opening remarks of the mediator and starting statements of the parties, every thing is significant in taking the process a long way. 

Collecting and Analyzing the Relevant information:  The mediator obtains necessary clues of the issues from the  opening statements of the parties and develops further information from that level which help him in establishing a focus and maintain a momentum of the resolution process. One usual method is collecting the briefs from the parties, which will reveal the flavour of the dispute and help understanding the issues and contrasting view points. The opening statement, the circumstances in which the dispute arose, the sum and substance of the issues to be resolved are expected to be collected from the parties at the first or second phase of the mediation.

Agenda Setting: Mediator has to strategically draft the list of the issues, circulate among the parties, collect their suggestions and then finally secure the consensus in listing out and fixing priority of the issues in order of their preference in resolution effort. If needed, he has to reframe the issues or reorient the list or reprioritize the issues. He has to see whether all the interests and concerns of all the parties reflected in the issues listed or not. This process completes agenda setting.

Communication Process: The next stage in mediation is the flow of communication between the disputant parties. The parties understanding of each other’s perspective and mediator’s understanding of the issues and interests are important, which require perfect communication. The body language, restatement, paraphrasing, summarizing are the elements of communication. In understanding the communication, one has to cross the barriers of cultural challenges, gender, personality, language and perception challenges. The communication can be re-established with frequent meetings, questions of closed, open  and leading questions, active listening questions, elaboration questions, clarification questions, confirmation questions, confrontation questions, hypothetical questions and questions asked by the mediator establish the required information bridge. Unless one listens to, it is difficult to understand the message. There are four levels of listening- ignoring, pretending, selective and attentive listening. The listener has to give up the feeling that he wants to be more important than the speaker and allow the speaker to be most important for some time at least. He has to quell his desire to talk. He has to suspend his judgment and search out what is truly important for the speaker and finally he should focus on the main event.

Meeting the parties and meeting between parties: The mediator has to decide whether to have joint sittings with the parties or individual caucusing. He has to choose whom to meet first.  The meetings of this kind affect the party power balance. It is always important to retain the focus on interest and remind the confidentiality of the process and information to the parties. While the objective of initial meetings with parties and arranging meetings between them is to collect more information about the issues to be settled and increase the credibility and the bond of friendship between the parties. The information collected by this process of establishing communication and series of meetings help the mediator in evaluation of the case and possible settlement points. The mediator also can use these meetings for explaining the BATNA and WATNA for both the parties.

These meetings will facilitate the negotiation process between the parties. All those strategies of negotiation can be adopted, tested and the benefits realized.

j) Arbitration & Conciliation Act:

            Now, the proceedings relating to CONCILIATION are dealt under sections 61 to 81 of Arbitration and Conciliation Act, 1996. This Act is aimed at permitting Mediation conciliation or other procedures during the arbitral proceedings to encourage settlement of disputes. This Act also provides that a settlement agreement reached by the parties as a result of conciliation proceedings will have the same status and effect as an arbitral award on agreed terms on the substance of the dispute rendered by an arbitral tribunal.


To which disputes:

            Section 61 says that conciliation shall apply to disputes arising out of legal relationship, whether contractual or not and to all proceedings relating thereto.  Unless any law excludes, these proceeding will apply to every such dispute while being conciliated. The parties may agree to follow any procedure for conciliation other than what is prescribed under the 1996 Act. If any law certain disputes are excluded from submission to conciliation, the third part will not apply.

            According to Section 62, a party can take initiative and send invitation to conciliate under this part after identifying the dispute. Proceedings shall commence when other party accepts the invitation. If rejects it stops there itself. If other party does not reply within 30 days it can be treated as rejection.


1 Conciliation under the Arbitration and Conciliation Act

The Act of 1996 (in sections 61 to 81 contained in Part III) make express provisions as to conciliation by agreement of the parties - a matter on which there has so far been no statute in India.

2 Conciliation and Arbitration

Unlike an arbitrator, a conciliator does not give a decision but his main function is to induce the parties themselves to come to settlement. An arbitrator is expected to give a hearing to the parties, but a conciliator does not engage in any formal hearing, though he may informally consult the parties separately or together. The arbitrator is vested with the power of final decision and in that sense it is his contribution that becomes binding. In contrast, a conciliator has to induce the parties to come to a settlement by agreement.

3 The Emotional Aspect

An arbitrator generally decides after a contest between the parties while in the case of conciliation the final result depends on the will of the parties. Therefore, at the end of the proceedings, emotional harmony between the parties may not suffer much, in the case of conciliation.

4 Scope

Under Section 61(1) of the new law, conciliation can be resorted to in relation to "disputes arising out of a legal relationship, whether contractual or not".

5 Commencement

A party initiating conciliation can, under Section 62, send to the other party a written invitation to conciliation. Conciliation commences when the other party accepts in writing this invitation. If it does not accept it, then there will be no conciliation (section 62 ).

6 Conciliators

a.                  There will be only one conciliator, unless the parties agree to two or three.

b.                  Where there are two or three conciliators, then as a rule, they ought to act jointly.

c.                  Where there is only one conciliator, the parties may agree on his name

d.                  Where there are two conciliators, each party may appoint one conciliator.

e.                  Where there are three conciliators, each party may appoint one, and the parties may agree on the name of the third conciliator, who shall act as presiding conciliator.

f.                    But in each of the above cases, the parties may enlist the assistance of a suitable institution or person.

The above provisions are contained in section 63 and 64(1).

7 Institutional Assistance

Section 64(2) and proviso of the new law lay down as under :-

a.                  Parties may enlist the assistance of a suitable institution or person regarding appointment of conciliator. The institution may be requested to recommend or to directly appoint the conciliator or conciliators.

b.                  In recommending such appointment, the institutions etc. shall have regard to the considerations likely to secure an "independent and impartial conciliator".

c.                  In the case of a sole conciliator, the institution shall take into account the advisability of appointing a conciliator other than the one having the nationality of the parties.


Section 37 provides that an appeal shall lie from certain orders. No second appeal will lie from an order passed in an appeal. However, the right to appeal to the Supreme Court is not affected.

Incidentally, the new list of appealable orders is slightly narrower than that contained in Section 39 of the Arbitration Act, 1940.

8 Stages

In sections 65 to 73 contains provisions spread over a number of sections as to the procedure of the conciliator. Their gist can be stated in short form.

a.                  The conciliator, when appointed, may request each party to submit a statement, setting out the general nature of the dispute and the points at issue. Copy is to be given to the other party. If necessary, the parties may be asked to submit further written statement and other evidence.

b.                  The conciliator shall assist the parties "in an independent and impartial manner", in their attempt to reach an amicable settlement. See Section 67(1) of the new law.

c.                  The conciliator is to be guided by the principles of "objectivity, fairness and justice". He is to give consideration to the following matters :-

i.                    rights and obligations of the parties;

ii.                  trade usages; and

iii.                circumstances surrounding the dispute, including previous business practices between the parties. [Section 67(2)].

d.                  He may, at any stage, propose a settlement, even orally, and without stating the reasons for the proposal. [section 67(4)].

e.                  He may invite the parties (for discussion) or communicate with them jointly or separately. [Section 68].

f.                    Parties themselves must, in good faith, co-operate with the conciliator and supply the needed written material, provide evidence and attend meetings, [Section 71].

g.                  If the conciliator finds that there exist "elements of a settlement, which may be acceptable to the parties", then he shall formulate the terms of a possible settlement and submit the same to the parties for their observation.

h.                  On receipt of the observations of the parties, the conciliator may re-formulate the terms of a possible settlement in the light of such observation.

i.                    If ultimately a settlement is reached, then the parties may draw and sign a written settlement agreement. At their request, the conciliator can help them in drawing up the same. [See Sections 73(1) and 73(2)].

9 Legal Effect

a.                  The settlement agreement signed by the parties shall be final and binding on the parties. [See Section 73(1)].

b.                  The agreement is to be authenticated by the conciliator. [See Section 73(4)].

c.                  The settlement agreement has the same status and effect as if it were an arbitral award rendered by the arbitral tribunal on agreed terms. [See section 74 read with section 30].

The net result is that the settlement can be enforced as a decree of court by virtue of section 36.

10 Role of the Parties

Under section 72, a party may submit to the conciliator his own suggestions for the settlement of a dispute. Such suggestions may be submitted by him on his own initiative or on the conciliator's request.

11 Conciliator's Procedure

The net result of section 66, Section 67 (2) and Section 67(3) can be stated as follows :-

a.                  The conciliator is not bound by the Code of Civil Procedure or the Evidence Act.

b.                  The conciliator is to be guided by the principles of objectivity, fairness and justice.

c.                  Subject to the above, he may conduct the proceedings in such manner as he considers appropriate, taking into account.

i.                    the circumstances of the case;

ii.                  wishes expressed by the parties;

iii.                need for speedy settlement.

12 Disclosure and Confidentially

a.                  Factual information received by the conciliator from one party should be disclosed to the other party, so that the other party can present his explanation, if he so desires. But information given on the conditions of confidentiality cannot be so disclosed.

b.                  Notwithstanding anything contained in any other law for the time being in force, the conciliator and a party shall keep confidential "all matters relating to the conciliation proceedings". This obligation extends also to the settlement agreement, except where disclosure is necessary for its implementation and enforcement. (Section 75).

13 Admissions etc.

In any arbitral or judicial proceedings (whether relating to the conciliated dispute or otherwise), the party shall not rely on, or introduce as evidence

i.                    views expressed or suggestions made by the other party for a possible settlement;

ii.                  admissions made by the other party in the course of conciliation proceedings;

iii.                proposal made by the conciliator; and

iv.                 the fact that the other party had indicated his willingness to accept a settlement proposal (Section 81).

14 Parallel Proceedings

During the pendency of conciliation proceedings, a party is debarred from initiating arbitral or judicial proceedings on the same dispute, except "such proceedings as are necessary for preserving his rights". (Section 77) (There is no mention of arbitral or judicial proceedings which are already initiated).

15 Conciliator Not to Act as Arbitrator etc.

Unless otherwise agreed by the parties, the conciliator cannot act as arbitrator, representative or counsel in any arbitral or judicial proceedings in respect of the conciliated dispute. Nor can he be "presented" by any party as a witness in such proceedings. (Section 80).

16 Costs and Deposit

The new law also contains provisions on certain other miscellaneous matters, such as costs and deposit (Section 78 and 79).

How to Draft and Execute a Settlement:

            There is no standard format for drafting a settlement deed. The settlement arrived of negotiation is different from that of conciliation, in its nature. It is a mere contract and breach of which may lead to another litigation before the court of law. Like every agreement this also has to be executed in the stamp paper worth Rs 100. Whereas the settlement in conciliation proceedings could be considered as the award provided some formalities are fulfilled. If the document incorporating the settlement terms is signed by the disputants, the conciliator has to authenticate those signatures, which would complete the formalisation of the document. However, the Indian Stamp Act makes it mandatory to affix the Stamp worth Rs 250 for an award worth above Rs 5000. (For award worth Rs 1000 the stamp paper required is Rs 10, for Rs 5000 it is Rs 50). Then it will acquire legal validity of being an award under Section 31 of Arbitration and Conciliation Act, which would be equivalent to a decree and is immediately enforceable.


            If the parties to dispute agree upon a negotiated settlement to the extent of payment of a certain amount, for example, it will be executed immediately when the settled amount is paid. No need of further enforcement or execution. If the settlement is for payment on a future date, and that was not made, the recourse available for the suffered party is only to file a suit for breach of contract.


            If the settlement is product of conciliation, with all the formalities of reducing it into writing and authenticated by the conciliator, on a stamped paper, it will be an award and thus a decree, which could be executed immediately. Non compliance would lead the party affected to file execution petition straight.



            The following  are the advantages of resolving disputes by conciliation:

1.        The parties and the third neutral party (in place of judge) sit together to resolve.

2.        Matter settles at threshold of the first count, and for all times to come instead of resorting to all possible appeals to High Court and the Supreme Court, as many times as the CPC provided.

3.        The social advantage of parties going back home happily without broken relations is of high value. The bickering and enmity will not be enhanced as happens in other modes of rule based resolutions.

4.        Drastically cuts down the cost of litigation and the time. The early disposal of the case will reduce the hidden and unproductive costs like traveling to courts and keeping off from working for several productive days.

5.        Execution is done simultaneously of the settlement.

6.        It offers a more flexible alternative, for a wide variety of disputes, small as well as large.

7.        It obviates the parties from seeking recourse to the system.

8.        It reserves the freedom of the parties to withdraw from conciliation without prejudice to their legal position inter se at any stage of the proceedings.

9.        It is committed to maintenance of confidentiality throughout the proceedings and thereafter of the dispute, information exchanged, the offers and counter offers of solutions made and the settlement arrived at;

10.   It facilitates the maintenance of continued relationship between the parties even after the settlement or at least during the period the settlement is attempted at. This feature is of particular significance to the parties who are required to continue their relationship despite the dispute, as in the case of disputes arising out of construction contracts, family relationships, family properties or disputes between members of any business or other orginisations.

11.   There is no scope for corruption or bias.


Copyright (navigation elements, the essay is copyright the author) 1998-2003 Stephen R. Marsh [home]

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