The differences between mediation and conciliation were discussed in detail. While courts around the world use the terms interchangeably, Indian courts have often distinguished them. This is clear from the decision of the Supreme Court of India in Salem Advocate Bar Association v. Union of India (2005) 6 SCC 344. This difference in treatment poses extreme difficulties in enforcing a mediation settlement agreement. 9. uncitral.un.org/en/texts/mediation/conventions/international_settlement_agreements/status mediation procedures in India are strictly private and confidential. Section 75 of the ACA provides that, notwithstanding other laws in force in India, the arbitrator and the parties shall treat as confidential all matters relating to the mediation process and that confidentiality shall extend to the settlement agreement, unless its disclosure is necessary for its implementation and enforcement. [xiv] Available at: centre4mediation.com/wp-content/uploads/Mediation%20and%20Conciliation%20Rules.pdf; Last accessed 08.04.2020 According to the Law on Arbitration and Conciliation and the Law on Commercial Courts, mediation agreements have the same status as an arbitral award and can therefore be challenged on the same grounds as arbitral awards. Fatal factors include fraud, coercion, corruption, incompetence of political parties or agreements that violate the fundamental principles of public order or Indian law. In India, mediators are not required to provide evidence of mediation or so-called agreements in connection with a dispute or arbitration.
This provision helps to preserve the confidentiality of the entire procedure. Singapore`s Arbitration Act treats mediation and conciliation on an equal footing and does not create a distinction. What sets Singapore`s national mediation system apart, however, is the passage of the Mediation Act in 2017 (Act 1 of 2017), which significantly strengthened the enforcement framework for settlements negotiated by private brokers in Singapore. Virtual mediation offers benefits such as inventive solutions to disputes, the continuation of the parties` business relationships that allow the parties to achieve a result that would not be available in a court case, a win-win outcome, etc.[xxiii] With the expected increase in disputes, there will be a welcome increase in the use of technologies and transactions that use mediation as a quick and fast process. Cost-effective as part of their Consider dispute resolution toolkits. Therefore, virtual mediation must be encouraged and will be a quick solution to the stagnation that is occurring. [vi] Pon Staff, “Using E-Mediation and Online Mediation Techniques for Conflict Resolution,” Negotiation Program, Harvard Law School, Daily Blog, January (2020). Available at: www.pon.harvard.edu/daily/mediation/dispute-resolution-using-online-mediation/; last seen on 08.04.2020 Can protect relationships: Regulation 32A of the Code of Civil Procedure recommends mediation for family/personal relationships, as ordinary court proceedings are not ideal for the sensitive area of personal relationships. Therefore, to protect relationships, mandatory mediation before a court case can be really helpful, as court proceedings usually declare one person winning and another losing, resulting in resentment that lasts for a long time. `11. The first anomaly is the confusion between the definitions of `mediation` and `court settlement` in points (c) and (d) of Article 89(2) of the Code. Subparagraph (c) states that the court responsible for “judicial settlement” refers him to an appropriate institution or person who is considered Lok Adalat.
Point (d) provides that, in the case of “mediation”, the court reaches a compromise between the parties by following the prescribed procedure. It makes no sense to call a compromise reached by a court “mediation, as is the case in subparagraph (d). Nor does it make sense to call a reference from a court to an appropriate institution or person for the purpose of reaching a settlement a “court settlement”, as is the case in clause (c). According to the Commercial Courts Act 2015, any period during which the parties “remain engaged” in pre-institutional mediation under the Act is not calculated for the purposes of the limitation period. In India, judicial mediation centres organize two training courses: a 40-hour basic training course and a 20-hour training. The accreditation of mediators takes place after the completion of the basic training, 20 hours of mediation (including co-mediation) and the completion of the training. The problem, Bobde said, is that ADR mechanisms such as arbitration and mediation are seen as secondary options, and if this mindset does not change, measures to reform and promote these mechanisms will remain ineffective. `13. Where words are generally understood in a particular sense and given a certain meaning in everyday language, the definitions of those words in Article 89 with inverted meanings have led to confusion, complications and difficulties in implementation. […].