MEDIATION AS AN EFFECTIVE ALTERNATIVE DISPUTE RESOLUTION Mediation is currently a global phenomenon.

As an alternate dispute resolution mechanism, it has gained momentum very recently in India. Though people find it more , expeditious, efficacious and cheaper when compared to ordinary litigation, it has not attained the desired objectives to the fullest extent. The ineffective implementation of the mechanism and lack of awareness among public about its advantages over litigation have aggravated the problem highlighting the grey areas in mediation practice in India. Mediation is an informal dispute resolution mechanism, where a neutral third party who is selected and accepted by the disputing parties act as a facilitator. The process of mediation is believed to be simple, less expensive and speedy, The possibility of settlement of dispute is more so long as the parties are able to understand the nature of the process of mediation and effectively participate in it. Here, in this process the mediator is facilitating to get a win-win solution to their disputes. Most importantly, unlike adjudication mediation keeps up the good relationship between the parties since there is no win-loss situation. In adjudication the solution is always win-loss. The relationship between the parties becomes worse and more complex in the event of an appeal by the aggrieved party in the higher courts. But in mediation all the disputes are being settled and hence there is no chance for future indifference or strained relationship between the parties. In other words mediation aims at dissolution of the disputes rather than merely resolving it for the parties. In mediation the mediator helps the parties to jointly explore and reconcile their differences. The mediator can adopt various strategies to seek information at appropriate stages or ensure parties commitment to the consensus. The follow up of a settlement by the mediator is very important. The tradition of dispute resolution through mediation prevailed from time immemorial in India.. An example can be seen in Mahabharata where Lord Krishna tried an unsuccessful mediation between pandavas and Kauravas to avoid the great battle. Coming to more recent times, mediation as a method of dispute resolution were practiced in the villages. The disputes between the parties were settled by the Panchayat which comprised the village elders. These Panchayats adopted the form of mediation acceptable to both the parties. Even now this form of mediation is prevalent in the villages in India. Such remedy through the Panchayats was sought by the villagers since they found it more convenient than approaching the courts. In many of the legislations in India, provisions for compromise or settlement of dispute by modes are incorporated in the enactments like the Industrial Disputes Act 47, the Family Court's Act, 1984, the Arbitration and Conciliation Act, 1996, the Legal Services Authorities Act, 1987, and the Gram Nyayalaya Act, 2008. These enactments deal with conciliation rather than mediation as a tool for

alternative dispute settlement. In India, the difference between mediation and conciliation is rarely understood and is often used interchangeably. However, these methods are fundamentally different. Conciliation is a process in which a neutral person meets with the parties to a dispute and explains how a dispute might be resolved. Conciliator may be an active participant in the process. However, he cannot impose a solution on the parties, but be so clever as to appear that the parties themselves have made such a suggestion. Mediation is a voluntary and non-binding process, enabling the parties to directly express their own interests and anxieties relevant to the dispute. It is an effective alternative to the adversarial system. Instead of being a judge, a mediator is a neutral and impartial person who actively facilitates the negotiation between the parties. The mediator is expected to use specialized communication skills to assist the parties in arriving at an optimal solution. hereby, the mediator plays the role of a facilitator of the parties positive relationship and that of an evaluator skilled at examining the different aspects of the dispute. The concept of conciliation received legislative recognition for the first time in the Industrial Disputes Act, 1947. The Hindu Marriage Act, 1955, also provides for mediation in matrimonial disputes. Another example is section 9 of the Family Courts Act, 1984. India has for the first time seen a tremendous change in the functioning of Alternative Dispute Resolution (ADR) mechanism through the enactment of the Arbitration and Conciliation Act, 1996. The Act has made elaborate provisions for conciliation of disputes arising out of legal relationship whether contractual or not and to all proceedings relating thereto. If the matter is settled, the settlement recorded on agreed terms shall be treated as an award on agreed terms under Section 30(2). In the Civil Procedure Code, 1908, there are certain provisions that provide for mediation and conciliation. Similarly, the Gram Nyayalaya Act, 2008, provides for the establishment of Gram Nyayalayas at the grass roots level for the purpose Of providing access to justice to the citizens at their door steps and to ensure that opportunity for securing justice are not denied to any citizen for socio-economic reasons and other disabilities and for matters connected therewith or incidental thereto. The Malimath Committee agreed with the 129th Law Commission of India's recommendation for starting of conciliation courts all over the country in all sort of cases. PARUL SOLANKI (ASST. PROFESSOR), SUSHIL KUMAR BORRISON (LIBRARIAN) FIMT, SCHOOL OF LAW