What does the Civil Procedure Code say about Mediation, Conciliation and Arbitration?- Part I
*Vennila Thambidurai
Statutes and Precedents never failed to explicitly state the need for the implementation and usage of Alternative Dispute Resolution (ADR) mechanisms, whenever the situation demanded. ADR, comparatively, reduces the cost and the duration of the dispute resolution for the parties and also, reduces the burden of the Courts.
India has a long history of community based resolution using mediation and arbitration. Besides, various Regulations and Legislations during the British period contributed to the gradual development of ADR. After independence, the Code of Civil Procedure (Amendment) Act, 1999 inserted Section 89 and Rules 1A, 1B, 1C in Order X of Code of Civil Procedure, 1908. The objective of the insertion is to blend judicial and non-judicial dispute resolution mechanisms and bring ADR mechanism to the Centre of the Indian Judicial System.
Section 89 of CPC empowers the Courts to refer disputes to the Alternate Dispute Resolution mechanisms and Rules 1A, 1B, 1C of Order X lays down the power of the Court, to make reference after the pleadings and to refer the matters to a private Conciliatory forum
- Section 89 (1) gives jurisdiction to the Courts to refer the matter to appropriate ADR mechanisms listed thereunder, after formulating possible terms of settlement. The terms of settlement are in fact, formulated and shared with the parties for their observations, before making reference.
- Section 89 (2) speaks about the obligations of the Courts and the law applicable in respect of the listed ADR mechanisms
When it prima facie appears to the Court that there exists elements of a settlement, then the Court proceeds for formulation of settlement terms and reference as stated under section 89 (1). Following are the mechanisms recognized under section 89,
1. Arbitration
2. Conciliation
For Arbitration and Conciliation, the provisions under Arbitration & Conciliation Act, 1996 are to be followed as if the matter was originally referred to settlement under the said Act.
3. Judicial Settlement including Settlement through Lok Adalat
The provisions of the Legal Services Authority Act, 1987 are to be followed as if the matter was originally referred to settlement under the Act.
4. Mediation
Since there is no law governing mediation as of now, the applicable law has not been specified. However, the Court has been empowered to effect a compromise between the parties in accordance with the procedure prescribed, if any (through Judgments, Rules, Regulations etc.)
….. to be continued
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