S.

S JAIN SUBODH LAW COLLEGE

MANSAROVAR, JAIPUR

A PROJECT ON
MEDIATION, CONCILIATION AND ARBITRATION
LL.B. II Year

Topic- Mediated Agreements

SESSION-2021-22

Submitted to: Ms. Preeti Swami(Assistant Prof.)

Summitted by: AnushreeMathur

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 ACKNOWLEDGEMENT

Before we get into thick things, I would like to add few words of appreciation
for the people who have been a part of this Project right from its inception. The
writing of this project has been one of the significant academic challenges I have faced
and without the support, patience and guidance of the people involved in this task
would not have been completed. It is to them I owe my deepest gratitude.

It gives me immense pleasure in presenting this projecton Topic- Mediated

Agreements. The success of this project is a result of sheer hard work and
determination put in by me with the help of my project guide and takes the opportunity
to express my gratitude to Ms. Preeti Swami (Asst.Prof.) of S.S.JainSubodh Law
College, Mansarovar, Jaipur, who played a significant role in my project. I hereby,
take this opportunity to add a special note of thanks for the PrincipalDr. Swati Mehta
constant encouragement at every step.

I also feel heartiest sense of obligation to my library staff members and seniors
who helped me in collection of data and resource material and also in its processing as
well as in drafting manuscript. The project is dedicated to all those people, who helped
me while doing this project.

Date:12/05/2022 11 Submitted
by: Anushree Mathur

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 CERTIFICATE

This is to certify thatAnushreeMathurLL.B. II Year has carried out this Project

titledMediated Agreements under my supervision for the partial fulfilment of LL.B.
Degree offered by S.S.JainSubodh Law College, Mansarovar, Jaipur, during the
academic year 2021-22 is an original work carried out by the student under my
supervision. The student has completed the research work in stipulated time and
according to the matter prescribed for the purpose.

Date: 12/05/2022
Name of Supervisor: Ms. Preeti Swami(Asstt. Prof.)

Signature of Supervisor

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 TABLE OF CONTENTS

S.No. Particulars Page No.

1. Introduction 5-6
2. Topic- Mediated 7-12
Agreements
3. Conclusion and Suggestion 12
4. Bibliography 13

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 Introduction

Mediation is one of the modes of alternative dispute resolution by which parties can resolve
their disputes. Mediation is a voluntary process through which disputing parties find a mutual and
amicable solution to their legal dispute. In India, two legislations deal with mediation mainly, the
Code of Civil Procedure, 1908, and the Arbitration and Conciliation Act, 1996. Mediation is
essentially negotiation where parties come together to resolve their disputes. It is facilitated by one
neutral third party, unlike Arbitration wherein the neutral third party has the decision-making ability.
Arbitration is very close to trial proceedings. The neutral party who is known as the mediator does
not involve itself in the decision-making process. The mediator is present in the mediation to give
suggestions, facilitate the free flow of ideas, provide an unbiased view to the session, etc. The parties
are however not bound by any suggestion the mediator has made and can choose to accept or decline
the suggestion as per their discretion. The role of the parties is to openly and honestly discuss and
negotiate a solution to the dispute. This process takes place behind closed doors in order to maintain
the utmost level of confidentiality.

In 2014, the Supreme Court of India in VikramBakshi v Ms. Sonia Khosla pointed out the
advantages of mediation and also how it can provide a conducive environment for the parties to
achieve a win-win situation. Mediation has the significant potential not merely for reducing the
burden of arrears, but more fundamentally for bringing about a qualitative change in the focus of the
legal system from adjudication to the settlement of disputes. Undoubtedly, mediation has various
advantages, but mediation in India is at a very nascent stage in India. As there is no dedicated piece
of legislation that governs mediation, there are quite a few gaps in this process. Thus, this article
aims to understand the enforceability of mediated settlement agreements. Before we address the issue
of enforceability of such agreements, we must dive deeper and understand what is meant by
mediated settlement agreements and what is the importance of such agreements.

A settlement agreement in simple words can be understood as a contract that is reached by

the parties which resolve their disputes. Now, as mediation is a process in which the parties
voluntarily decide to engage in, a mediated settlement agreement can be reached after mediation by
both parties. In other words, in a mediated settlement agreement whatsoever the parties have decided

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mutually is reduced in writing. It is a document that binds the parties to cohere to the agreed terms
and conditions as an outcome of mediation.1

1
https://lawsikho.com/course/certificate-course-in-introduction-to-legal-drafting

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 What is Mediation?

Mediation can be defined as a procedure that follows with the discussion of disputes between
the parties with the assistance of a third party namely a mediator to reach a settlement or a decision.
It is an informal meeting that generally includes cases that are pending in court or which are to be
filed in court. Mediation is generally used where no such complex and rigid laws are needed. It is
one of the best methods of Alternative Dispute Resolution (ADR).

Mediation is really important in today's world and in the recent past, there has been increasing in the
popularity of mediation like the UNCITRAL Working group discussion on coming up with an
international treaty such as the New York Convention for the administration of the mediated
settlement agreements, and the discussions on the use of mediation in resolving international
investment disputes (one should also not forget the consistently increasing popularity of mediation
competitions in India and globally). The mediation process is generally inexpensive, involves less
time and statutes, and is preferably a 'hand-on' process.

Who is a Mediator?

A mediator is a person, who, acting unbiasedly, resolves the arguments and generally holds for a
settlement between the parties. He/She has an arsenal of negotiation techniques, common sense, and
a conclusion-based nature which helps in convincing the parties lately. Unlike a litigation process,
where the decision or final result is declared by a Judge, Mediation has complete control of the
parties, to decide the kind of settlement they want and how it is to be worked.

The role of the mediator is to relay information between the parties, frame issues, and define the
problems. He initiates the parties to work on their common interests and reach a mutually agreed
settlement.

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Qualification

➔The Panel of mediators may include retired judges of the Supreme Court of India/ High Court,
retired district and session judges, or retired Officers of Delhi Higher Judicial Service.

➔ Legal Practitioners with at least ten years standing at the bar at the level of Supreme Court or
High Court or District Courts or experts or other professionalswith at least fifteen years standing.2

2
https://www.legalserviceindia.com/legal/author-22901-shashank-singh-.html

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 Legal aspect and approach to mediation in India

Mediation is an out of court settlement which is voluntary and two parties undergo this process to
reach an amicable settlement. Mediation being one of the Alternative Dispute Resolution
mechanisms is an upcoming field in the legal sphere. Mediation is a process where a third party who
has no benefits from the outcome tries to solve is the dispute between the two conflicting parties. The
mediation process begins with an interaction between the mediator and the two parties.

The parties then state their issues and what is the outcome they desire. The basic motive of mediation
is to provide the parties with an opportunity to negotiate, converse, and explore options aided by a
neutral third party, to exhaustively determine if a settlement is possible.3

Importance of mediated settlement agreements

Mediated settlement agreements are important because they can turn risks, delays into decisions of
the parties. A good settlement agreement can help the parties to remove misunderstandings and
conflicts. It also lessens the burden on courts and also reduces legal expenses.

At the end of a successful mediation, one must obtain the basic terms of the agreement in writing
before completing the mediation process. Without a signed document, it may be difficult to
implement the agreement reached during the mediation process. The process of mediation is
confidential, which is one of the best things about the process. If the parties do not sign a document
containing at least their main terms, it is difficult to prove the agreement reached during the
mediation. The parties must sign a final agreement if they settle because the parties may have second

³ https://indiankanoon.org/docfragment/176790728/?formInput=mediation%20settlement%20binding

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thoughts about their decision after time away from mediation. To remove the possibility a mediated
settlement agreement is always encouraged by professionals. Thus, a mediated settlement agreement
should be detailed, even-handed, and not conditional, using clear and familiar wording, emphasizing
position action, and lastly should also address any pending proceedings for the future.

Legal enforceability of mediated settlement agreements

in India
There isn’t any law in India defining ‘mediation’ however there are diverse references to it. Most
applicable in the context of commercial mediations are the Code of Civil Procedure 1908, and
the Commercial Courts Act 2015. Under Section 89 of the Code of Civil Procedure 1908 which
empowers the court to refer disputes for agreement out of courtroom doors, which includes
mediation. The problem with Section 89 lies in the fact that it mandates that where it appears to the
court that there exists an element of settlement which may be acceptable to the parties, the court shall
draft the terms of settlement and after receiving comments of the parties may reformulate the terms
of possible settlement after which parties may be referred to arbitration, conciliation, judicial
settlement or mediation. In cases of settlements in court-annexed mediations, the settlement is
enforced through the courts as the court passes an order or decree in terms of the written settlement.

When we move to Section 30 of the Arbitration And Conciliation Act, 1996 which encourages
settlement of the disputes is only effective when the parties have chosen to settle a dispute after they
have initiated arbitration proceedings. In case the parties have opted for private mediation with
regards to a mediation clause or otherwise, settlement agreements cannot be treated as arbitral
awards. They are just and forced as contracts between parties. This raises various issues because the
settlement agreement cannot be enforceable as a decree of the court, but it may form the basis of a
civil suit, and then it would dilute the whole purpose of opting for alternate dispute resolution. It can
happen even though the parties have settled the matter. As a result, the weak compliance mechanism
negates the purpose of mediation, making the whole process ineffective. As a result, in India, private
mediation is not preferred.

Can mediated settlement agreements be challenged?

As per the Arbitration and Conciliation Act and the Commercial Court Act, mediation agreements
have the same standing as an arbitral award, and therefore can be challenged under the same reasons
as arbitration awards. Fatal factors include fraud, coercion, corruption, political party incompetence,

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required to provide mediation evidence or so-called agreements in litigation or arbitration. This
provision helps in maintaining the confidentiality of the whole proceedings.

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Conclusion
As the Indian regime separates mediation from arbitration, the law will inevitably bring them to the
same level in terms of uniform applicability and acceptance. If mediation is compared with
arbitration, mediation can only be used as a viable alternative dispute resolution procedure. Until and
unless the government enacts a law on mediation there will remain gaps that will require court’s
intervention periodically. Even if the government enacts a law on mediation, India has still a long
way to go from realising the true potential of alternative dispute resolution.

Finally, when formulating law on a mediated settlement agreement, the legislature must also ensure
that the scope of the challenge is limited to the mediation agreement. Otherwise, even if they are
considered to be arbitration awards, they will fail. The Indian government is actively taking steps to
facilitate business in India. Improving the ability to resolve disputes is essential to promote business
practices, and the signing of the Singapore Mediation Convention guarantees Indian foreign
investors’ commitment to alternative international dispute resolution practices.

Suggestions
1. Focus on the problem. Rather than blaming particular individuals, identify the issues at stake, and
invite others to join you in thinking about solutions.

2. Engage in joint problem solving. Because others may view a given situation quite differently than
you do, start off the discussion by asking open-ended questions and testing your assumptions.

3. Promote effective feedback. Help your co-workers learn how to give good feedback so they can
express their concerns in a positive manner rather than letting them stew. 4

4
https://www.pon.harvard.edu/tag/mediation-skills/

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 BIBLIOGRAPHY

Thegivenmatterhasbeen takenfromthefollowingwebsites:

 www.indiankanoon.com

 www.niti.gov.in

 www.manupatra.com

 www.researchgate.com

 www.legalserviceindia.com

 www.ssrn.com

 www.Lawsikho.com

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