Into the Cavernous Notions of Mediation and Conciliation.

Authored by - Mr. Aditya Sharma

Designation - Associate Partner, MediateGuru

The settlement of disputes between different components of the society is an indispensable element of societies of all forms and times since their inception. The strong and effective mechanism for resolution of these disputes is mark of successful operation of the society. There were several mechanisms utilized for settlement of disputes in the societies all over the world, most of which were very informal in their earlier days. The earlier informal methods of dispute resolution found in the primitive societies gradually transformed into formal methods of dispute settlement. The present-day judicial system in almost all civilized societies in the world, shoulders a cardinal responsibility as a dispute settlement mechanism by application of law in force. The effective resolution of the disputes is considered highly important for achieving the ends of justice. It is believed that the function of law and the legal system that is in force for dispute settlement is to balance conflicting interests in the society. The Judicial settlement of disputes though is the most popular method of dispute settlement in modern era suffers several drawbacks due to its formality. Due to these drawbacks, the State who is responsible to administer justice via judicial establishments was forced to think of other suitable methods of dispute settlement which could be employed effectively for dispute settlement in a modern era. The Alternative Dispute Resolution (ADR) in a contemporary era emerged as a possible solution for effective redressal of the disputes by overcoming the drawbacks faced in the traditional judicial dispute settlement. The Alternative Dispute Resolution includes primarily techniques like Arbitration, Conciliation and Mediation for settlement of disputes arising between the individuals as well as other components of the society. Of all these techniques Mediation has received special consideration in the present era. The process of Mediation involves settlement of the disputes on voluntary submission of the dispute by the parties to the mediator/mediators who command respect of the parties and have received competent training in mediation. The procedure is less formal but guarantees satisfaction of the parties involved in the dispute. It is cost effective and ensures settlement in a minimum time. The current trends all over the world suggest that the process of Mediation is gaining more and more popularity as a dispute settlement mechanism to the extent that even the judicial organs are encouraging it.

The ancient Indian jurisprudence sufficiently demonstrates existence of this method for resolving disputes of all nature. The method then was not only employed to resolve the interpersonal disputes and conflicts civil as well as criminal in nature, but also yield prolific and significant results in resolution of political differences between the different Kingdoms in ancient India. The epics like Mahabharata and Ramayana in ancient India, as well as the ancient texts and formal socio-legal sources governing the conduct of people in ancient India, bears a very strong testimony of the presence of this technique for dispute resolution. The mediators were trained and experienced in dispute resolution mechanism and were champions of the sources governing the social conduct of the people and the religious, legal and moral principles governing this conduct. They enjoyed a place of high respect and esteem as wise men in the society. The justice delivery system in ancient India was not separated from the executive, which enhanced the importance of these mediators in conflict management and its resolution. The permanent system for mediation was established which was referred as ‘Panchayat’ in the villages of ancient India. The village headmen with the council consisting of other distinguished members of the society used to function as mediators in any dispute submitted to them. The panchayat then by discussion and deliberation amongst themselves and with the parties involved in the dispute often arrived on the settlement, which was accepted by both the parties in dispute. The disputes in which no settlement could reach upon were only referred to the judicial authorities for their consideration and final verdict. The conflict between two kingdoms were also resolved many a times on the similar lines where the mediator acceptable to both the parties tried to direct them to the peaceful settlement of the dispute and the forcible methods like war for dispute resolution were resorted as a last option. This method of dispute settlement survived the blows and scars of foreign rule even in medieval India. In the medieval period, the Mughal rulers invaded India and established legal system that was foreign for the Indians. The Panchayat system proved very benevolent in this era for being indigenous in origin, and people preferred it over the judicial system of foreign origin for dispute settlement. In a modern period, the British rule in India completely transformed the character of Indian legal system. The codified statutory law replaced the traditional law based on the religious sources and on the customs and practices of the people. The laws were written in foreign language and were executed and administered by the Officers of British origin. This presented several difficulties to the people in India for whom the entire system was unknown. The British administrators often failed to take into account the local customs, beliefs, faiths and practices of the people in administering the law and in delivering justice by resolving disputes. Though, understanding of the British officers of the English law was of a very high standard, they could not acquaint themselves with the basic traits and characteristic of the indigenous legal system prevailing in India. The circumstances boosted utilization of ‘Panchayat’ as a dispute settlement mechanism to resolve disputes between the local residents. The panchayat system had its own inherent advantages. It was based on the foundation of strong moral and ethical values in India. The respect for elders and the wise men in the community, due recognition to their experience and expertise and more importantly the love for peace and tranquillity in the society were the basic characteristics of the Indian Society, which supported the efficacy and effectiveness of the panchayat system as dispute settlement mechanism. Gandhi, the champion of the Indian Freedom Struggle, the great jurist and ardent supporter of non-violence and peace and father of the Indian Nation had a very strong belief and faith in the Panchayat system as the dispute settlement mechanism. He was thoroughly convinced that this is the only way for effective resolution of disputes amongst the Indian citizens who in majority resided in Indian villages, where the judicial mechanism was not very easily accessible. He was a staunch supporter of this system and advocated strongly for adopting measures for its systematic adoption and development in the Indian legal system as a parallel dispute settlement method. It was for this reason that some provisions in this regard were incorporated in the Constitution of India and it was made obligatory to some extent for the government in India to take measures in this regard. Unfortunately, in the early years of the history of independent India, much attention was not paid towards the development of panchayat system. In the zeal of making the judicial system stronger and more accessible for the people, the inherent advantages of the Panchayat system were ignored. The importance of Judiciary was emphasized to the extent that it emerged as the principal dispute settlement mechanism in India. This consequently resulted into piling of cases in the courts. The formalities associated with the court system affected justice delivery in India in terms of time and quality. The overburdened Judiciary, from lower to higher, proved insufficient to cater the needs and then, the importance of panchayat was again realized by the government. The globalization in 21st century is considered responsible for international growth and development of Mediation as a dispute settlement mechanism. The globalization provided opportunities to establish inter-state legal ties between the individuals and also the organizations. The conflict of laws in the different States failed to resolve disputes that arose in these international ties between the individuals or organizations. The requirement therefore was felt of evolving a suitable mechanism by which disputes between the parties representing different legal systems could be resolved without referring to law prevailing in any one country. The Mediation then emerged as a solution wherein without reference to law of any one country the parties could be drawn to amicable settlement of disputes. For this inherent advantage of Mediation, it was encouraged globally that resulted into generation of vast jurisprudence on the process. This international movement in favour of adopting alternate dispute settlement mechanism like, Mediation, Arbitration and Conciliation for resolution of disputes also provided a much-needed impetus to the rejuvenation of Mediation in India. The laws governing ADR in India till 1996 were mostly pre-independent and were incompetent to address the emerging concerns. All those laws were repealed by the law that came into force in the year 1996 to govern and regulate the process of Arbitration, Conciliation and Mediation in India. The Arbitration and Conciliation Act, 1996 is the law that today regulates the process of Mediation in India along with Arbitration and Conciliation. The Mediation is also governed by the Civil Procedure Code to some extent. The Mediation as per Supreme Court of India is a non-adjudicatory process that is aimed at amicable settlement of disputes between the parties via Mediator. As of policy the present legal system in India encourages ADR. The pendency of the suits in courts of law propelled the need for popularizing the techniques like Mediation. Different initiatives have been taken to encourage Mediation for dispute settlement. The establishment of Permanent institutions like Indian Institution of Mediation has proved very benevolent for encouraging mediation. The Supreme Court also took special measures to encourage Mediation for dispute settlement. It has launched special training program for training of the mediators. These mediators are certified by the Supreme Court after completion of the required training program and are highly competent in handling the mediation process.

Thankfully in India, though the Panchayat system has lost its past relevance in dispute settlement, it was not completely vanished, and still existed for certain executive purposes. In 21st century the Indian policy makers have adopted certain measures to incorporate mediation, arbitration and conciliation as methods of dispute resolution. At the same time, realizing the advantages of Panchayat system in dispute resolution, their role in this regard is also encouraged by the government by taking different steps in this direction. These steps involve the formation of small committees at the village, unit and district level for resolution of certain disputes with the assistance of police and other executive and judicial authorities. These Committees are proving highly proficient in dispute settlement at village levels. The experience of Maharashtra State in this regard is very encouraging and emphasizes the importance of techniques like mediation in dispute settlement. The success of the experiment in the State like Maharashtra is reaffirming faith in the age-old Panchayat system for dispute resolution via Mediation. It is heartening to see that the people in rural India still trust the members of Panchayat in the villages and approves their role as mediators in dispute settlement.

It can be said that the overburdened judicial dispute settlement mechanism in India needs urgent assistance from the alternate dispute settlement mechanism for providing easy, cost effective and timely settlement of disputes in India. The age-old indigenous Panchayat System in India, which since ages is performing profound role in amelioration of disputes, can come to the rescue in given circumstances to provide a very effective solution for dispute settlement in India. It is necessary to strengthen the Panchayats in India in this regard. The prowess of the Village Headmen and his Council as Mediators must be channelized in effective dispute settlement. It is necessary to ensure that the Panchayats all over India are established in a manner that facilitates performance of this role by Panchayats. This requires proper training facilities being made available to Members of the Panchayat to polish their skills as mediators and thus conduct mediation proceedings to the desired effect. It is necessary to provide incentive to the parties who settle their disputes via mediation. It is also necessary to recognize and appreciate the Panchayats who successfully implements and adopt Mediation for dispute resolution. This will be of great significance in providing a very impelling alternative for dispute settlement to the majority of population staying in rural India.


Contact us at:

  • Twitter
  • Facebook
  • Instagram
  • LinkedIn

Follow us on our Social Media handes to stay updated

Copyright © 2020 MediateGuru | Powered by MediateGuru