Alternative Dispute Resolution Material, Lecture notes of Land Law

Download Alternative Dispute Resolution Material and more Lecture notes Land Law in PDF only on Docsity! An Open Access Journal from The Law Brigade Publishers 19 CONCILIATION: A PERUSAL WITHIN THE ADR REGIME Written by Sidhika Dwivedi* & Madhvendra Singh** *2nd Year BA LLB Student, Symbiosis Law School Noida ** 2nd Year BBA LLB Student, Amity Law School Noida ABSTRACT This research paper is written on the topic ‘Conciliation: A Perusal within the ADR Regime’. The researchers have started the paper by telling the history of Conciliation in India, how the Law has transformed over time. The researchers have talked about the difference between conciliation and mediation through some authentic sources across the globe. The researchers have tried to cover all the legal aspects of conciliation majorly the procedure involved, the role of conciliator and the final settlement agreement. Keeping in mind the advantages and challenges, we have discussed relation of conciliation with Civil Justice system, commercial disputes and disputes arising in family. In the last we have given a set of suggestions and recommendations based upon our research work. INTRODUCTION “An ounce of conciliation is worth a pound of arbitration and a ton of litigation!” — Joseph Grynbaum According to information provided by the Registry of Supreme Court of India, as on 31.10.2006, more than 2,53,80,757 cases were pending in our subordinate Courts. The figure of pending adjudication is, surely, astonishing. To manage these cases, we have less than 15,000 judges and legal officials in the nation. The ratio of judges per million populations in India is the most reduced on the planet. This not just shows the dire Indian Politics & Law Review Journal (IPLRJ) ISSN 2581 7086 Volume 5 - 2020 An Open Access Journal from The Law Brigade Publishers 20 need of more legal advisors, judges, and courts, yet additionally elective techniques for illuminating questions that are increasingly conservative and effective in their working. Conciliation is an alternative out-of-court dispute resolution instrument. Like mediation, conciliation is a voluntary, flexible, confidential, and interest-based process. The parties seek to reach an amicable dispute settlement with the assistance of the conciliator, who acts as a neutral third party. 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 party's legal positions but also their; commercial, financial and/or personal interests. HISTORY OF CONCILIATION IN INDIA Conciliation is as old as Indian history. In Mahabharata when both parties were determined to resolve the conflict in battlefields, Lord Krishna made efforts to resolve the conflict. Now, the pancliayat system works in the villages. The Indian system places a lot of importance on the resolution of disputes by negotiation which is purely conciliatory. Conciliation is essentially a consensual process. Under the Arbitration and Conciliation Act, 1996, it has the statutory sanction. The best example where conciliation played an integral role is of the highly politically sensitive case of the Beagle channel dispute over the ownership of certain islands in the entrance to the channel between Chile and Argentina. The mediator was the Vatican. The process was remarkable because it was flexible enough to accommodate the changing political environments in both countries and the mediator used a range of tools to great advantage. This process served to protect a fragile peace between the Indian Politics & Law Review Journal (IPLRJ) ISSN 2581 7086 Volume 5 - 2020 An Open Access Journal from The Law Brigade Publishers 23 DISSIMILARITIES: CONCILIATION & MEDIATION Even though parliament clearly defines and states the difference between conciliation and mediation, people still get confused among the two. Here in this part, we have tried to present the difference between the two by giving backing from some authorities. In the year 1996, through the Arbitration and Conciliation Act Parliament tried to distinguish between the two. Section 30 of the act provides that dispute can be settled by an arbitral tribunal by the use of ‘mediation’ or ‘conciliation’. The sub-section (1) of the said section allows the arbitral tribunal to “use mediation, conciliation or other procedures” for reaching the stage of settlement. In the Civil Procedure Code (Amendment) Act, 1999 which introduced section 89 gave provision for conciliation and mediation as a different concept. Where order 10 Rules 1A, 1B,1C of the said code goes along with section 89.74 ‘Mediatior’ is a facilitative process in which “disputing parties engage the assistance of an impartial third party, the mediator, who helps them to try to arrive at an agreed resolution of their dispute. The mediator has no authority to make any decisions that are binding on them, but uses certain procedures, techniques, and skills to help them to negotiate an agreed resolution of their dispute without adjudication.” vii In the recent Discussion Paper by the Lord Chancellor’s Department on Alternative Dispute Resolution where while defining ‘Mediation’ and ‘Conciliation’, it is stated that ‘Mediation’ is a way of settling disputes by a third party who helps both sides to come to an agreement, which each considers acceptable. Mediation can be ‘evaluative’ or ‘facilitative’. ‘Conciliation’, it is said, is a procedure like mediation but the third party, the conciliator, takes a more interventionist role in bringing the two parties together and in suggesting possible solutions to help achieve a settlement. But it is Indian Politics & Law Review Journal (IPLRJ) ISSN 2581 7086 Volume 5 - 2020 An Open Access Journal from The Law Brigade Publishers 24 also stated that the term ‘conciliation’ is gradually falling into disuse and a process that is pro-active is also being regarded as a form of mediation.*« The difference between conciliation and mediation: Under our law and the UNCITRAL model, the role of the mediator is not pro-active and is somewhat less than the role of a‘conciliator’. We have seen that under Part III of the Arbitration and Conciliation Act, the ’Conciliator’s powers are larger than those of a ‘mediator’ as he can suggest proposals for settlement. Hence the above meaning of the role of ‘mediator’ in India is quite clear and can be accepted, in relation to sec. 89 of the Code of Civil Procedure also. The difference lies in the fact that the ‘conciliator’ can make proposals for settlement, ‘formulate’ or ‘reformulate’ the terms of a possible settlement while a‘mediator’ would not do so but would merely facilitate a settlement between the parties. PROCEDURE IN CONCILIATION The process of conciliation can only start when the disputing parties agree to conciliate voluntarily. Then the appointment of a neutral conciliator is done. There will always be one party initiating the conciliation, they will send a written letter in form of invitation to conciliate to the other party briefly identifying the motive and the subject matter on which the conciliating will take place. But the process of conciliation commences only when the other party accepts in writing the invitation to conciliate.** Even if before the commencement of the contract, the parties have incorporated the clause for conciliation in their agreement, still the conciliation would only start if the other party accepts the invitation of other party to conciliate. Thus, the conciliation agreement should always be an ad lioc agreement entered only after the occurrence of dispute and not before the dispute. *4 Through this it can be concluded, Part III of the Arbitration and Conciliation Ac, 1996 does not envisage any future agreement for conciliation.» Indian Politics & Law Review Journal (IPLRJ) ISSN 2581 7086 Volume 5 - 2020 An Open Access Journal from The Law Brigade Publishers 25 In the process of conciliation ordinarily there is only one conciliator unless the party requires two, three or more. If there is more than one conciliator, they are supposed to act jointly. Even the case of uneven number of conciliators is satisfactory since the work of the conciliator is to make recommendations for a settlement and not to deliver a decision. *# In conciliation process where there is only one conciliator, the parties can decide mutually among themselves. In case of two, each party may decide one each conciliator. There is also an option of requesting an institution for recommending any suitable conciliator may be specialized for that dispute.*v ROLE OF CONCILIATOR Before the process of conciliation begins both parties are required to submit a brief written statement where all the issues faced by them at that point in time have to be mentioned. The parties are also required to state the nature of disputes and give a copy of such statement to both the conciliator and the other party. *v It is required from the side of conciliator(s) to assist the party in an independent and impartial manner so that they may reach an amicable settlement of their dispute.*vi A conciliator is expected to initiate a positive dialogue between the party, an atmosphere where both the parties are free to disclose their state of mind for harmonious and corporative problem-solving, what they want from other parties, to create faith upon one another. The conciliator should try to refrain from creating an atmosphere where parties are playing blame game.*vi The process of conciliation, inter alia, involves creating a constructive bonding between the disputed parties to steer towards resolution. It should be noted here that the conciliator is free to conduct the proceeding in any manner as he would consider appropriate for the parties and the nature of disputes. The conciliator has wide power in shaping the dynamic process towards a settlement.*v# The Arbitration and Conciliation Act, 1996 has not kept conciliator Indian Politics & Law Review Journal (IPLRJ) ISSN 2581 7086 Volume 5 - 2020 An Open Access Journal from The Law Brigade Publishers 28 conciliation that distinguish it from arbitration. Conciliation is different from arbitration and hence is better suited in certain situations. COST EFFECTIVENESS The process of conciliation is a very economical mechanism for dispute resolution in comparison to prosecution and arbitration which makes it one of the best ADR mechanisms. As a number of hearing in settings of the process can be fixed bipartisan conciliator is it reduces multiplication of actual cost for the parties.xlii As we know conciliator has to follow specified procedure for the party keeping in mind the need for speedy settlement of the dispute.*liv Also, the conciliator can you practice time management tool to prevent extending on conciliation procedure for longer duration and insure that the conclusion is reached within a reasonable frame of time.*!’ The end results in conciliation are based on negotiations that are treated to be an arbitral award on agreed terms by both parties, therefore, the possibility of success successive appeals and resolving the dispute in an expeditious and cost-effective manner increases. AUTONOMY AND CONVENIENCE OF THE PARTY Inferring the above content, we can conclude that conciliation is very flexible and convenient. Here parties are free to agree upon the procedure followed by the conciliator. The power for deciding time and venue for the meeting remains in the hands of both the parties and the conciliator himself.vi Taking into account the circumstances and the situation of the parties the venue and the procedure can be added according to the wish of the parties. This is commendable feature of conciliation that a party can withdraw from cancellation at any stage.*!¥ii Until and unless the party has full consent and willing to continue the process the resultant settlement agreement cannot be bound by the process upon the parties. One of the features of conciliation is Indian Politics & Law Review Journal (IPLRJ) ISSN 2581 7086 Volume 5 - 2020 An Open Access Journal from The Law Brigade Publishers 29 party autonomy which is very laudable feature. Unlike arbitration and litigation where the parties have no say in the procedure where the parties are bound by the verdict. Therefore, the parties and the conciliator does not only control the proceedings but also show the final outcome is in their hand.*!viii HARMONY BETWEEN PARTIES Litigation and Conciliation are different in a way that in litigation or arbitration one of the parties wins and the other one loses but in the case of conciliation since both parties agree and accept the same decision, both parties are winners. Hence, in Conciliation there is always a win-win situation as both the parties remain satisfied with the outcome. Conciliation is more favourable than arbitration as it makes easier for the parties to retain their good relationship after the result unlike in Litigation and Arbitration. In litigation always one-party wins and the other loses which creates a win-loss situation and further create barriers between the parties and therefore building good relationship again cease to continue. Conciliation proceedings do not always result in settlement but it still proves to be useful as it makes parties understand each other's versions, positions, and aspirations in a better way. CONFIDENTIALITY In conciliation confidentiality is something which is guaranteed by the statute itself in contradiction to judicial proceeding conciliation is a private process where inside a closed room two parties resolve their matter.“ This is one of the best features of conciliation in alternative dispute resolution. in conciliation both the parties and the conciliator are required to keep the facts and all the material relating to the proceedings very confidential.! Parties are required not to speak regarding the views of other parties in respect of the possible settlement of their dispute. parties should also refrain from making admission of other parties and other conciliators in the course of the proceedings. during the course of cancellation process a consider is Indian Politics & Law Review Journal (IPLRJ) ISSN 2581 7086 Volume 5 - 2020 An Open Access Journal from The Law Brigade Publishers 30 required not to speak about any information or not to bring out any e subject matter regarding the dispute to other party or conciliators. Through this the element of confidentiality is ensured. Here and conciliation an opportunity is provided to resolve dispute without publicizing it. It helps greatly in commercial disputes arising in any company. It should be kept in mind the conciliator can never be presented as a witness in the dispute by the parties during the proceedings.!# The conciliator should also refrain from including any representative or council in respect of a dispute that is the subject matter of the consolation proceedings. ENFORCING SETTLEMENT AGREEMENT The settlement agreement formulated after the conciliation proceeding has the same and equal effect and status as of an arbitral awardlii standard by an arbitral tribunal under section 30 of Arbitration and Conciliation Act, 1996. Thus, the agreement in conciliation is executable in court of law and is open to any party of the dispute by just filling in execution petition before the civil Court. Thus, the execution of settlement agreement in a civil court is a principal advantage attached conciliation.!¥ REASONS TO UPLIFT CONCILIATION IN INDIA Just like other countries other developing countries India too has a reputation for long winding procedures appeals from order of code and extensive system of revisions. While the motive is to ensure the plaintiff's satisfaction with the legal proceedings the price for this is delay in verdict. They have been number of attempts to simplify the procedure so that a speedy justice can be served. But somewhere the back the fact remains same India is presently critical stage of its development and one has to think about ADR that will benefit Indian judicial system as a whole. Indian Politics & Law Review Journal (IPLRJ) ISSN 2581 7086 Volume 5 - 2020 An Open Access Journal from The Law Brigade Publishers 33 References to conciliation in family contest goals can be found in the Family Courts Act, 1984, Civil Procedure Code, Hindu Marriage Act and the Legal Services Authorities Act, 1987 that perceives and gives an exceptional status to Lok Adalats that have been very effective in mediating family disputes. Conciliation is a successful strategy for family dispute resolution. It is more alluring than the case since it enables the gatherings to devise an understanding which meets their particular needs. It engages the gatherings to pick elective alternatives which a court may not offer as a cure, for instance, isolated couples contending over authority of their youngsters can define their very own novel child-rearing plans. The accentuation in intercession is to discover a useful arrangement, not at all like an antagonistic framework that spotlights on who is correct and who is wrong and for the most part winds up in harshness, along these lines expanding the limit with regards to settling clashes in the society. A typical conciliation method is for the conciliator to meet independently with each party. The conciliator at that point trains each party to make a rundown of objectives or goals that they need to achieve through the arrangement procedure. Each gathering will at that point place every objective arranged by need (the request is typically extraordinary for each party). After this, the conciliator will go to and from between each of the parties and urges them to agree on every target. This may include one party giving up or relinquish their own needs all together for the parties to agree. Along these lines, a few of the more significant perspectives for the situation get settled. The procedure works on the grounds that the parties are regularly ready to fabricate trust in each other after a string of fruitful understandings. The improvement of mediation in the resolutions of family disputes in India holds huge guarantee and will fortify the framework's ability to convey justice!i, The Indian family is viewed as solid, steady, close, flexible and persevering. Mediation can help save this character of Indian family and change and supplement the proper question goals components. Making mediation required for goals of family questions will give Indian Politics & Law Review Journal (IPLRJ) ISSN 2581 7086 Volume 5 - 2020 An Open Access Journal from The Law Brigade Publishers 34 an unmistakable appearance of the court's responsibility to a settlement looking for an approach", Likewise, it will lessen the build-up of cases while giving the gatherings a sound option. The Family Courts Act must be revised reasonably and a necessary mediation condition must be embedded. To keep up the wilful idea of mediation, an arrangement might be made which requires the gatherings to record satisfactory reasons under the watchful eyes of the court for not settling on mediation'#, The Hindu Marriage Act may likewise be altered and mediation can be caused required to with the exception of the special cases given under Section 23(2). To make the procedure of mediation productive, arrangements might be made with respect to models to be pursued during intervention procedures. For this reason, a reference to Part III of The Arbitration and Conciliation Act, 1996 will be exceptionally useful explicitly as to the job to be played by the conciliator. As indicated by Section 67, the conciliator should act in a free and fair-minded way while encouraging a neighbourly settlement between the gatherings. What's more, he is to watch objectivity, decency, and equity and needs to give due thought to the rights and commitments of the two gatherings. Middle people encourage correspondence and collaboration between the gatherings, they help them in recognizing the issues, explaining needs, investigating zones of trade-off and discover purposes of understanding, goals of family question requires restorative guiding also, it is subsequently basic that goes between ought to be skilled!x, very much prepared and educated. Arrangements with respect to capabilities for a family question go-between can likewise be determined. Qualified middle people will likewise expand the believability and fame of mediation. Arrangements should likewise perceive nearby arbiters in light of the fact that a neighbourhood go-between who knows the neighbourhood conditions and the parties may resolve the question in a greatly improved manner than an outsider. In the Indian setting, such acknowledgment will encourage alternative dispute resolution as individuals are agreeable and fulfilled when their accounts are heard in Indian Politics & Law Review Journal (IPLRJ) ISSN 2581 7086 Volume 5 - 2020 An Open Access Journal from The Law Brigade Publishers 35 a casual nearby procedure. In the event that the parties find that the casual methodology is out of line or they can't arrive at a settlement, they can generally approach the formal legitimate framework, in this way mandatory intervention is protected enough. Mandatory Conciliation under Section 12 of the Industrial Disputes Act, 1947 has assumed an extremely indispensable job in building up and keeping up modern amicability by protecting connections. The accomplishment of mandatory conciliation in settling mechanical debates is another impetus for presenting the equivalent for goals of family questions. Further, obligatory intervention in family questions has had extensive accomplishment in nations like U.K. furthermore, Australia, who has a well-created foundation for continuing family question goals by intercession, India should likewise make a comparable endeavour. COMMERCIAL DISPUTES AND CONCILIATION This part of the paper of the kinds of the nature of commercial disputes and the ability of conciliation to provide suitable resolution method for the same. It is a fact that commercial disputes are inevitable. The way that the distributor handle can largely impact the probability of business. the poorly managed dispute can cost money create uncertainty among the investors and also degrade the reputation of a company. It is correctly said that conflict is a path part of an organization. It is known by different names such as many dispute difficulty difference order arrangements or agreement. And the result of a mismanaged dispute is the same which will somewhere threaten the very future of the organization. It is acknowledged that area processes like mediation and conciliation provide a platform for a party in commercial dispute to resolve and consider all the dimensions of dispute including financial emotional legal in protected and private environment. Also known fact that commercial disputes are often centred on a very sensitive commercial detailed dispute which part is would not prefer to be disclosed in public even to the investors. The feature of confidentiality of conciliation is highly attractive Indian Politics & Law Review Journal (IPLRJ) ISSN 2581 7086 Volume 5 - 2020 An Open Access Journal from The Law Brigade Publishers 38 to disguise a wrongdoing; or where divulgence is important to demonstrate or refute a case or protest of expert offense or carelessness documented against a middle person or conciliator. The parties might be supported by a middle person or conciliator to look for autonomous counsel, lawful or something else, before consenting to an arrangement went into during an intervention or pacification. The money related expense of conciliation ought to be borne by the parties, and ought to be based on a composed consent with that impact went into toward the start of the intercession or appeasement. This ought not to be translated as avoiding involved with common procedures in the High Court or Circuit Court from submitting to tax collection of costs any bill of expenses emerging from the procedures. The court, except if it is fulfilled that the conciliation condition is broken, is unequipped for being performed or is void, or that there isn't in truth any debate between the gatherings as to the issue consented to have alluded, should make a request remaining the procedures. Where a court hosts welcomed parties to think about utilizing conciliation, the court may, without an understanding by the parties as to money related cost, make such request for expenses acquired by either party regarding the conciliation process as it thinks about simply, including a request that the two gatherings bear the expenses similarly. The guardians or gatekeepers engaged with a family law question may (regardless of whether as a feature of an intercession or conciliation process or something else) get ready and concur a child-rearing conciliation, which accommodates child-rearing and guardianship courses of action for any offspring of theirs, by reference to the eventual benefits of every kid. A conciliator in an assuagement procedure including a family law contest will prompt any party that doesn't have a lawful agent or other expert guide associated with the Indian Politics & Law Review Journal (IPLRJ) ISSN 2581 7086 Volume 5 - 2020 An Open Access Journal from The Law Brigade Publishers 39 procedure to think about looking for free counsel, regardless of whether legitimate or something else. The presentation of an early unbiased assessment plot for individual damage claims, including any cases emerging out of medicinal treatment. We likewise prescribe that early impartial assessment ought to be characterized as a procedure that happens at a beginning period of common procedures wherein the gatherings express the authentic and lawful conditions to a free outsider (the —early unbiased evaluatorl) with appropriate learning of the topic of the contest, and in which the early nonpartisan evaluator gives an assessment to the gatherings about what the possible result of the procedures would be if the case continued to a conference in court. CONCLUSION Conciliation has been effective in India through a framework that has turned out to be well known as Lok Adalat (individuals' court). These were at first impromptu bodies made out of prominent people, legal advisors, judges, social activists, government authorities and paralegals who might attempt to help the parties who in the pro- prosecution procedure arrive at a settlement.* The Lok Adalats have additionally been valuable to the legal executive since courts host eluded gatherings to these Lok Adalats when it is felt that a question could be better settled there. The achievement of the Lok Adalats is found in the number of cases that are settled: up to 31st. Walk 1996, more than 13,000 Lok Adalats have been held in India where 5 million cases were settled. Of these, 278, 801 instances of engine mishap cases representing 8,612 million Rupees were paid to the claimants. As it were, Lok Adalats have accomplished the status of ADR. That court allots aday ina fortnight or month to hear matters that the gatherings have consented to privately address any outstanding issues through the Lok Adalat is adequate proof of its prevalence. It might likewise be an announcement about the individuals! decision to contest goals components, their dissatisfaction with the legal framework - its vulnerabilities and postponements. That Indian Politics & Law Review Journal (IPLRJ) ISSN 2581 7086 Volume 5 - 2020 An Open Access Journal from The Law Brigade Publishers 40 might be the sign for us to endeavour to settle debates through appeasement, presently that even the legal executive has started to see merit in it. The conciliator in the process of conciliation as is comprehended in India plays an evaluative and interventionist job and is statutorily approved to make recommendations and propose conceivable answers for the parties while intercession is viewed as an ADR procedure which is basically facilitative. The chief bit of leeway in pacification is that a mollification settlement understanding is blessed to receive be an arbitral honour on concurred terms and is executable as an announcement of the court under the Arbitration and Conciliation Act, 1996. It is basically a result of this preferred position that conciliation eclipses intervention as an ADR system pre-litigation stage in Delhi. There are different establishments working in Delhi, for example, ICA, FACT, ICADR, and so on which give the best in class framework, proficient conciliators and brilliant offices for conciliation. There are different organizations and PSUs which join conciliation conditions in their agreements and go in for pacification at the pre case arrange, led either by specially appointed conciliators delegated by the gatherings by common accord or by foundations giving conciliation services. Anyway, the circumstance is oppositely inverse with regards to posting suit conciliation. In spite of the fact that conciliation is turned to under the Hindu Marriage Act, 1955 and the Family Courts Act, 1984 for goals of wedding questions by the courts themselves, anyway by and large, the procedure of intervention eclipses conciliation as a contest goals process under segment 89 CPC and in truth placation has been rendered repetitive. One reason is that the procedure as it has been deciphered today requires the assent of both the parties for being alluded to conciliation in a sub judicial issue by the court. Also, after such reference is made to an outside conciliator, the issue moves out of the domain of the town hall requiring the gatherings to acquire additional consumption on such out of court placation. Indian Politics & Law Review Journal (IPLRJ) ISSN 2581 7086 Volume 5 - 2020 An Open Access Journal from The Law Brigade Publishers 43 xvii Concepts of Conciliation and Mediation and their differences by Justice M. Jagannadha Rao http: //lawcommissionofindia.nic.in/adr_conf/concepts% 20med % 20rao % 201.pdf xvii In their celebrated book‘ ADR Principles and Practice’ by Henry J. Brown and Arthur L. Mariot (1997, 2nd Ed. Sweet & Maxwell, Lord on Chapter 7, p 127). xx (http: / / www.led. gov.uk/Consult/cir-just/adi/annexald/htm) (Annexure A), xx §. 62, Arbitration and Conciliation Act, 1996. »i V. Nageswara Rao, “Conciliation Proceedings under the Indian Arbitration Conciliation Act of 1996 and CPC — An Overview”, available at: http:// lawcommissionofindia.nic.in/ adrconf/nageswararao.pdf xi Visa International Ltd. v. Continental Resources (USA) Ltd., AIR 2009 SC 1366. xxiii See Commentary on Draft UNCITRAL Conciliation Rules. xiv §. 64, Arbitration and Conciliation Act, 1996. »v S65, Arbitration and Conciliation Act, 1996. »vi§. 67, Arbitration and Conciliation Act, 1996. vii MK. Sharma, “Conciliation and Mediation”, available at: www.delhimediationcentre. gov.in seviti P.M. Bakshi, “Conciliation for Resolving Commercial Disputes”, 1 Comp. L. J. Journal) 19 (1990); See also Haresh Dayaram Thakur v. State of Maharashtra, AIR 2000 SC 2281. xix §. 66, Arbitration and Conciliation Act, 1996. xx §. 67, Arbitration and Conciliation Act, 1996. wed §. 69, Arbitration and Conciliation Act, 1996. wedi Sarvesh Chandra, “ADR: Is Conciliation the Best Choice” in P.C. Rao and William Sheffield (Eds.), Alternative Dispute Resolution 82 (Universal Law Publishing Company Pvt. Ltd, Delhi, 1997). vod § 68, Arbitration and Conciliation Act, 1996. xxiv However, Conciliation may be facilitative also. See M. K. Sharma, “Conciliation and Mediation”, available at: www.delhimediationcentre. gov.in . The difference lies in the approach adopted by the conciliator and the level of intervention. See, Anirudh Wadhwa and Anirudh Krishnan (Eds.), R.S. Bachawat’s Law of Arbitration and Conciliation (Lexis Nexis Butterworths Wadhwa, Nagpur, 5th Edn., 2010). xav See O.P. Malhotra and Indu Malhotra, The Law and Practice of Arbitration and Conciliation (LexisNexis Butterworths, Delhi, 2nd Edn., 2006). avi Salem Advocate Bar Association v. Union of India, AIR 2005 SC 3353; See also Anirudh Wadhwa and Anirudh Krishnan (Eds.), R.S. Bachawat’s Law of Arbitration and Conciliation (Lexis Nexis Butterworths Wadhwa, Nagpur, 5th Edn., 2010. wavii A.C.C. Unni, “The New Law of Arbitration and Conciliation in India”, in P.C. Rao and William Sheffield (Eds.), Alternative Dispute Resolution 68 (Universal Law Publishing Company Pvt. Ltd, Delhi, 1997). xewili §. 73(1), Arbitration and Conciliation Act, 1996; See also United India Insurance Co. Ltd. v. Ajay Sinha, AIR 2008 SC 2398. woix §, 73(2), Arbitration and Conciliation Act, 1996. »tP.M. Bakshi, “ADR in the Construction Industry”, in P.C. Rao and William Sheffield (Eds.), Alternative Dispute Resolution 316 (Universal Law Publishing Company Pvt. Ltd., Delhi, 1997). xii Mysore Cements Ltd. v. Svedala Barmac Ltd., (2003) 10 SCC 375. xii As an arbitral award on agreed terms is also executable as decree of the court in terms of s. 36, Arbitration and Conciliation Act, 1996. xlii Ashwanie Kumar Bansal, Arbitration and ADR 26 (Universal Law Publishing Co. Pvt. Ltd., Delhi, 2005). xiv §. 67(3), Arbitration and Conciliation Act, 1996. xv Ashwanie Kumar Bansal, Arbitration and ADR 23 (Universal Law Publishing Co. Pvt. Ltd., Delhi, 2005). xvi §. 67(3), Arbitration and Conciliation Act, 1996 xvi Mukul Mudgal, “Conciliation: An Indian Perspective”, II (2) Nyaya Kiran (April 2003). xvii Ashwanie Kumar Bansal, Arbitration and ADR 24 (Universal Law Publishing Co. Pvt. Ltd., Delhi, 2005). xix §. 70, Arbitration and Conciliation Act, 1996. Indian Politics & Law Review Journal (IPLRJ) ISSN 2581 7086 Volume 5 - 2020 An Open Access Journal from The Law Brigade Publishers 4d 1A.K Bansal, “Conciliation: Quick Settlement of Disputes”, (1) Arb. L.R. (Journal) 22 (1999). 4S. 80, Arbitration and Conciliation Act, 1996; See also Alcove Industries Ltd. v. Oriental Structural Engineers Ltd., (2008) Arb.L.R. 393. 4i §. 81, Arbitration and Conciliation Act, 1996. lit $74, Arbitration and Conciliation Act, 1996. lv Ss. 74, 30 and 36, Arbitration and Conciliation Act, 1996; See also Avtar Singh, Law of Arbitration and Conciliation (Eastern Book Company, Lucknow, 7th Edn, 2005). W Section 73 of The Arbitration and Conciliation Act, 1996. li “222nd Report of Law Commission of India- Need for Justice Dispensation through ADR” - http:// lawcommissionofindia.nic.in/ reports/report222.pdf iii “The Family Dispute Resolution Mechanism in England and Wales”, [2003] HKLRC 1, http: // www.hklii.org/hk/other/hKirc/reports/2003/03/4.htm1 Wit http:/ / www.hklii org/hk/ other/hKirc/reports/2003/03/4.htm1 ix “A mediator must be patient, attentive, reliable, neutral, persuasive, compassionate and wise.” These have been institutionalised by the National Legal Services Authority Act, 1985. i Source: National Legal Services Authority, New Delhi, 1996. Indian Politics & Law Review Journal (IPLRJ) ISSN 2581 7086 Volume 5 - 2020