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Comparison between Judicial Process and Various Alternative Processes & Process of

by Smt. K.Prathusha Kumari, I Addl. Junior Civil Judge, Kadapa

Introduction:

Judicial Process Judicial process is basically “whole complex phenomenon of court working”. Everything done by the Judges in the process of delivery of Justice is called Judicial Process. Judicial process is an adjudicatory process where a third party (Judge/other authority) decides the outcome. Procedure and decision are governed, restricted, and controlled by the Provisions of the Relevant Statutes. In Judicial Process the Judges are called upon to decide contentious issues between the parties strictly in accordance with law and the Constitution. The Judicial Process is a set of interrelated procedures and roles for deciding disputes by an authoritative person or persons whose decisions are regularly obeyed. The disputes are to be decided according to a previously agreed upon set of procedures and in conformity with prescribed rules. As an incident, or consequence, of their dispute-deciding function, those who decide make authoritative statements of how the rules are to be applied, and these statements have a prospective generalized impact on the behavior of many besides the immediate parties to the dispute. Hence, the Judicial Process is both a means of resolving disputes between identifiable and specified persons and a process for making public policies. In every civilized society there are two sets of laws that govern the lives of citizens– (i) substantive laws and (ii) procedural laws. While the substantive laws determine the rights and obligations of citizens, procedural laws provide for the framework for enforcement of the same. Despite the fact that substantive laws are comparatively more important but the efficacy of substantive laws is contingent upon the qualitative deliverance of procedural laws. The latter needs to be efficient, simple, expeditious and inexpensive.

Alternative Dispute Resolution Section 89 of the Code of Civil Procedure, which gives the Court the power to refer the dispute for settlement or was introduced with a purpose of amicable, peaceful and mutual settlement between parties without intervention of the court. The constitutional validity of this section was upheld by the Hon'ble Apex Court in the case of Afcons Infrastructure Ltd. & Anr Vs. 2

Cherian Varkey Construction Co. (P) Ltd. & Ors, reported in (2010) 8 SCC 24, but the frequency with which ADR is utilized for resolution of disputes remains minute, which arises due to lack of knowledge about the same or on account of the reluctance of the parties. The alternate forums accorded under Section 89 are economically more viable as there are relatively lesser amount of transaction costs and thus, there is a need to make people aware about the same. The provision under Section 89 of CPC is an attempt to bring about resolution of disputes between parties, minimize costs and reduce the burden of the courts. It is provided for with the sole objective of blending judicial and non- judicial dispute resolution mechanism and bringing alternate dispute mechanism to the center of the Indian Judicial System. The long drawn process of litigation, the costs incurred by both parties for the same have and limited number of adjudicators has made Alternate Dispute Resolution an important aspect of the Judicial system to ensure swifter and speedier Justice. , mediation and conciliation are the main Alternative Dispute Resolution Mechanism which is generally adopted by the people to resolve their disputes in an informal manner. They try to reach a solution by settlement or with the assistance of a third neutral party and have turned out to be an effective alternative to the litigation process. In the words of Guatam Budhha, "Better than a thousand hollow words is one word that gives peace", which even is reflected in the famous Sanskrit quote “Santosham Paramam Sukham”. Mediation is one of the modes for attainment of 'Peace'. In Tabular Form Section 89 (2) of Cr.P.C Where a dispute had been referred to

Arbitration Lok Adalat Judicial Settlement Mediation For arbitration or To Lok Adalat, the For judicial settlement, For mediation, the conciliation, the court shall refer the the court shall refer the court shall effect a provisions of the same to the Lok Adalat same to a suitable compromise between the parties and shall Arbitration and in accordance with the institution or person follow such procedure Conciliation Act, provisions of sub- and such institution or as may be prescribed. 1996 shall apply as section (1) of section person shall be deemed if the proceedings 20 of the Legal to be a Lok Adalat and for arbitration or Services Authority Act, all the provisions of the conciliation were 1987 and all other Legal Services referred for provisions of that Act Authority Act, 1987 settlement under the shall apply in respect shall apply as if the provisions of that of the dispute so dispute were referred to Act. referred to the Lok a Lok Adalat under the Adalat; provisions of that Act;

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Reference to ADR and Statutory Requirement Section 89 and Order X Rule 1A of Code of Civil Procedure, 1908 require the court to direct the parties to opt for any of the five modes of alternative dispute resolution and to refer the case for Arbitration, Conciliation, Judicial Settlement, Lok Adalat or mediation. While making such reference the court shall take into account the option if any exercised by the parties and the suitability of the case for the particular ADR method. In the light of judicial pronouncements a referral judge is not required to formulate the terms of settlement or to make them available to the parties for their observations. The referral judge is required to acquaint himself with the facts of the case and the nature of the dispute between the parties and to make an objective assessment to the suitability of the case for reference to ADR.

Stage of Reference: The appropriate stage for considering reference to ADR processes in civil suits is after the completion of pleadings and before framing the issues. If for any reason, the court did not refer the case to ADR process before framing issues, nothing prevents the court from considering reference even at a later stage. However, considering the possibility of allegations and counter allegations vitiating the atmosphere and causing further strain on the relationship of the parties, in family disputes and matrimonial cases the ideal stage for mediation is immediately after service of notice on the respondent and before the filing of objections/written statements by the respondent. An order referring the dispute to ADR processes may be passed only in the presence of the parties and/or their authorized representatives.

Consent: Under section 89 CPC, consent of all the parties to the suit is necessary for referring the suit for arbitration where there is no preexisting arbitration agreement between the parties. Similarly the court can refer the case for conciliation under section 89 CPC only with the consent of all the parties. However, in terms of Section 89 CPC and the judicial pronouncements, consent of the parties is not mandatory for referring a case for Mediation, Lok Adalat or Judicial Settlement. The absence of consent for reference does not affect the voluntary nature of the mediation process as the parties still retain the freedom to agree or not to agree for settlement during mediation. Mediation and conciliation both are an informal process whereas arbitration is more formal as compared to them. In mediation, the mediator generally sets out alternatives for the parties to reach out an agreement. The main advantage of the mediation is that the settlement is made by the parties themselves rather than a third party. It is not legally binding on the parties. 4

Arbitration is a process where the parties submit their case to a neutral third party who on the basis of discussion determines the dispute and comes to a solution. Dispute resolution through conciliation involves the assistance of a neutral third party who plays an advisory role in reaching an agreement. The process adopted by all the three is different but, the main purpose is to resolve the dispute in a way where the interest of the parties is balanced.

COMPARISON BETWEEN JUDICIAL PROCESS AND VARIOUS ADR PROCESSES AND PROCESS OF MEDIATION

Judicial process Arbitration Mediation 1. Judicial process is an Arbitration is a quasi- Mediation is a negotiation adjudicatory process judicial adjudicatory process and not an where a third party process where the adjudicatory process. The (judge/other arbitrator(s) appointed by mediator facilitates the authority) decides the the Court or by the process. Parties participate outcome. parties decide the dispute directly in the resolution of between the parties their dispute and decide the terms of settlement. 2. Procedure and Procedure and decision Procedure and settlement are decision are governed, are governed, restricted not controlled, governed or restricted, and and controlled by the restricted by statutory controlled by the provisions of the provisions thereby allowing provisions of the Arbitration & Conciliation, freedom and flexibility. relevant statutes. 1996. 3. The decision is binding The award in an A binding settlement is on the parties. arbitration is binding on reached only if parties arrive the parties. at a mutually acceptable agreement. 4. Adversarial in nature, Adversarial in nature as Collaborative in nature as as focus is on past focus is on determination focus is on the present and events and of rights and liabilities of the future and resolution of determination of parties. disputes is by mutual rights and liabilities of agreement of parties parties. irrespective of rights and liabilities. 5. Personal appearance Personal appearance or Personal appearance and or active participation active participation of active participation of the of parties is not parties is not always parties are required. always required. required. 6. A formal proceeding A formal proceeding held A non-judicial and informal held in public and in private following strict proceeding held in private follows strict procedural stages. with flexible procedural procedural stages. stages. 7. Decision is appealable Award is subject to Decree/Order in terms of the challenge on specified settlement is final and is not grounds. appealable. 8 No opportunity for No opportunity for parties Optimal opportunity for parties to to communicate directly parties to communicate communicate directly with each other. directly with each other in the with each other. presence of the mediator.

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9. Involves payment of Does not involve In case of settlement, in a court fees. payment of court fees. court annexed mediation the court fee already paid is refundable as per the Rules. MEDIATION CONCILIATION LOK ADALAT

1. Mediation is a non- Conciliation is a non- Lok Adalat is non-adjudicatory adjudicatory process. adjudicatory process. if it is established under Section 19 of the Legal Services Authorities Act, 1987.

Lok Adalat is conciliatory and adjudicatory if it is established under Section 22B of the Legal Services Authorities Act, 1987. 2. Voluntary process. Voluntary process. Voluntary process.

3. Mediator is a neutral Conciliator is a neutral Presiding officer is a neutral third party. third party. third party. 4. Service of lawyer is Service of lawyer is Service of lawyer is available. available. available. 5. Mediation is party Conciliation is party In Lok Adalat, the scope of centered negotiation. centered negotiation. negotiation is limited. 6. The function of the The function of the The function of the Presiding Mediator is mainly conciliator is more active Officer is persuasive. facilitative. than the facilitative function of the mediator. 7. The consent of the The consent of the The consent of the parties is parties is not parties is mandatory for not mandatory for referring a mandatory for referring a case to case to Lok Adalat. referring a case to conciliation. mediation. 8. The referral court In conciliation, the The award of Lok Adalat is applies the principles agreement is enforceable deemed to be a decree of the of Order XXIII Rule 3, as it is a decree of the Civil Court and is executable CPC for passing court as per Section 74 of as per Section 21 of the Legal decree/order in terms the Arbitration and Services Authorities Act, of the agreement. Conciliation Act, 1996. 1987. 9. Not appealable. Decree/order not Award not appealable. appealable. 10. The focus in mediation The focus in conciliation The focus in Lok Adalat is on is on the present and is on the present and the the past and the present. the future. future. 11. Mediation is a Conciliation also is a The process of Lok Adalat structured process structured process having involves only discussion and having different different stages. persuasion. stages. 12. In mediation, parties In conciliation, parties In Lok Adalat, parties are not are actively and are actively and directly actively and directly involved directly involved. involved. so much. 13. Confidentiality is the Confidentiality is the Confidentiality is not observed essence of mediation. essence of conciliation. in Lok Adalat.

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Mediation & Conciliation: Comparison Chart

Basis for Mediation Conciliation Comparison Meaning Mediation is a process of Conciliation is a alternate resolving issues between parties dispute resolution method in wherein a third party assist which an expert is appointed to them in arriving at an settle the dispute by persuading agreement. parties to reach agreement. Regulated by Code of Civil Procedure, 1908 Arbitration and Conciliation Act, 1996 Basic element Confidentiality, that depends on Confidentiality, whose extent is trust. fixed by law. Third Party Acts as facilitator. Acts as facilitator, evaluator and intervener. Result Agreement between parties Settlement agreement Agreement It is enforceable by law. It is executable as decree of civil court. The basic difference between mediation and conciliation is based on the role played by the third party who is selected by the parties seeking a settlement, in consensus. In mediation, the mediator acts as a facilitator who helps the parties in agreeing. Conversely, in conciliation, the conciliator is more like an interventionist who provides probable solutions to the parties concerned, to settle disputes.

Key Differences between Mediation and Conciliation; a) The process of dispute resolution in which a third party intervenes in an attempt to resolve it, by enabling communication between parties is called mediation. On the other hand, conciliation implies a process of settling the dispute between the parties, in which a neutral third party provides potential solutions to the parties so as to resolve the issue. b) Mediation is governed by Code of Civil Procedure Act, 1908. Conversely, Arbitration and Conciliation Act, 1996 regulates conciliation. c) Both mediation and conciliation are premised on confidentiality. However, in mediation, confidentiality relies on the trust and in conciliation; the law determines the extent of confidentiality. d) In mediation, the role of the third party is a facilitator, who facilitates interaction between the parties. As against, in conciliation, the role played by the third party is beyond facilitator, who not only facilitate communication but also provide solutions to their problem as an expert. e) Mediation process completes with an agreement between the parties concerned, whereas conciliation ends with a settlement agreement between the parties.

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f) The contract of agreement between the parties under mediation is enforceable by law. On the contrary, the settlement agreement between the parties is binding upon parties like an arbitral award.

Arbitration & Conciliation; The primary difference between arbitration and conciliation is that arbitration is the process by which parties select an independent person, who renders a decision regarding the case. Conversely, conciliation attempts to make parties come to an agreement, about the problem at hand. Comparison Chart

Basis for Arbitration Conciliation Comparison Meaning Arbitration is a dispute settlement Conciliation is a method of process in which an impartial third resolving dispute, wherein an party is appointed to study the independent person helps the dispute and hear both the party to parties to arrive at negotiated arrive at a decision binding on both settlement. the parties. Enforcement A n arbitrator has the power to A conciliator does not have enforce his decision. the power to enforce his decision. Prior Required Not Required Agreement Available for Existing & future disputes. Existing disputes Legal Yes No proceeding

Key Differences Between Arbitration and Conciliation ; a) Arbitration refers to a method of resolving industrial disputes, wherein the management and the labour present their respective positions to the neutral third party, who takes a decision and imposes it. Conciliation is a method of resolving the dispute, wherein an independent person, who meet the parties jointly and severally and helps them to arrive at negotiated settlement or resolve their differences. b) The decision made by the arbitrator is acceptable to the parties concerned. On the other hand, the conciliator does not have the right to enforce his decision. c) Arbitration requires a prior agreement between parties known as arbitration agreement, which must be in writing. As against this, the process of conciliation doesn’t require any prior agreement. d) Arbitration is available for the current and future disputes whereas the conciliation can be adopted for existing disputes only. e) Arbitration is like a courtroom proceeding, wherein witnesses, evidence, cross- examination, transcripts and legal counsel are used. On the contrary, Conciliation is an informal way of resolving disputes between the management and labour. 8

f) It is often said that mediation is the best way of imparting justice through self- mediation of the parties. Mediator empowers the parties to communicate and decide the outcome on their own by providing various options suitable as per the dispute and has to think of alternative solutions favouring a mix of benefits to both parties. g) In brief, Mediation is all about facilitating or assisting negotiation between the parties. Mediation works between the parties because it gives chance to the parties to come to a settlement where both parties do not have to compromise their rights instead leads to a better solution.

Mediation and Arbitration: What’s the Difference? a) Arbitration and mediation are similar in that they are alternatives to traditional litigation, and sometimes they are used in conjunction with litigation (opposing parties may first try to negotiate, and if that fails, move forward to trial). Both arbitration and mediation employ a neutral third party to oversee the process, and they both can be binding. However, it is common to employ mediation as a non-binding process and arbitration as a binding process. In simpler terms, binding arbitration replaces the trial process with the arbitration process. b) Arbitration is generally conducted with a panel of multiple arbitrators who take on a role like that of a judge, make decisions about evidence and give written opinions (which can be binding or non-binding). Although arbitration is sometimes conducted with one arbitrator, the most common procedure is for each side to select an arbitrator. Then, those two arbitrators select a third arbitrator, at which point the dispute is presented to the three chosen arbitrators. Decisions are made by majority vote. c) Mediation, on the other hand, is generally conducted with a single mediator who does not judge the case but simply helps to facilitate discussion and eventual resolution of the dispute.

Why is ADR preferred more than litigation? a) ADR has gained a rapid popularity over the years. The business disputes are resolved more by the arbitration process than the litigation. The reason for acceptance of arbitration over litigation is due to many reasons. b) Arbitration is more cost-effective. The cost of the process involved in the dispute is much less than the cost involved in the litigation. c) The process is more informal as compared to the litigation process. There are no lengthy procedures as that is present in the court. d) ADR process is flexible. The parties can withdraw their case anytime they want which is not possible in court process.

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e) The dispute is resolved more quickly with the assistance of a third person, who advises the parties according to their needs and suitability. This is not same in case of the court process. The judges do not give judgment according to suitability of the parties. f) The resolution of the dispute is made faster. On the other hand, filing cases in the court take years and years to resolve one case. g) In ADR, an approach is made to balance the interest of both the parties. Whereas, in the litigation, the other party loses the case. h) Discussions of the proceedings in ADR are confidential and no public record is to be maintained. The discussions in the court involve knowledge of the public. i) The venue and schedule are according to the convenience of the parties as they have the power to choose the arbitrator, the place of the proceedings etc.

Conclusion: Judicial Process is an important armor of judiciary. It further delineates, the limitations within which the Judges need to exercise due caution to avoid such criticisms, and, to provide the sought remedial mechanism without crossing the limitations as advocated by the Constitution. Each of the ADR processes has their own logic, purposes, and jurisprudential justifications. It should be less technical and more responsive to the canons of the Justice and fair play and the make the arbitrator adhere to such process and norms which will create confidence, not only by doing justice between the parties, but by creating the sense that Justice appears to have been done and this being emphatically done.

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