Mediation and Conciliation, Lok Adalat, Ombudsman, Lokpal & Lokayukta Chapter Notes - Humanities/Arts PDF Download

Mediation

• Mediation is a method of ADR where a neutral third party facilitates communication between parties to help them reach a voluntary agreement. 
• It is more formal than negotiation but less formal than arbitration or litigation. 
• Mediation is cost-effective, fast, and confidential, and the outcome is not binding like an arbitral award, but can be incorporated into a legally binding contract.

Types

• Evaluative mediation provides an evaluation of the case and directs parties towards settlement
• Facilitative mediation does not evaluate the case and focuses on facilitating the conversation between parties
• Transformative mediation focuses on empowering and recognition shifts
• Mediation with arbitration begins as a standard mediation but if it fails, the mediator becomes an arbiter
• Online mediation uses online technology to provide access to mediators and parties despite distance or barriers
• Mediation/arbitration hybrids can pose ethical and process problems for mediators.

Process

• The process of mediation involves a neutral third party (mediator) who facilitates the dispute resolution. 
• The rules for mediation may vary, and the mediator typically sets the rules at the start of the process. 
• The success of mediation depends on the willingness of the parties and the mediator's skills. 
• Rules for mediator certification vary by state and there is no uniform set of rules.

Mediation can be triggered in three ways: 

• Pre-litigation through a pre-agreed mediation agreement, 
• at the start of formal court proceedings and 
• during or after formal court proceedings, including the appellate stage.

Conciliation

• Conciliation is a process similar to mediation where parties voluntarily appoint a neutral third party to resolve their disputes. 
• The main difference between mediation and conciliation is the role of the neutral third party. 
• A mediator facilitates the process and provides a platform for the parties to reach a mutually acceptable solution, while a conciliator may be more proactive and suggest solutions to the parties to resolve their claims and disputes.

Laws on Mediation and Conciliation 

• Both Mediation and Conciliation are regulated by Section 89 of the Civil Procedure Code, 1908, which was amended in 2002. 
• This code governs the process and procedure of resolving civil disputes. 
• However, Section 89 only covers court-referred mediation and pre-litigation mediation is not yet regulated by any law in India. 
• The process of conciliation is only mentioned in Section 89 of the Civil Procedure Code, 1908. 
• The procedures for conciliation are outlined in the Arbitration & Conciliation Act, 1996 and the Industrial Disputes Act, 1947, which provides for conciliation as a means of resolving disputes in the labor sector.

Lok Adalat 

• Lok Adalat is an Indian concept of a "People's Court" that aims to relieve the burden on the courts and provide a quicker resolution to disputes through alternative methods such as mediation and negotiation. 
• The institution of Lok Adalat is presided over by a judicial officer with two other members, a lawyer and a social worker. 
• It has jurisdiction to settle pending court cases and pre-litigation disputes, both civil and non-compoundable criminal. 
• The main principles of Lok Adalat include participation, fairness, voluntariness, transparency, efficiency, and a lack of animosity.

Advantages of using Lok Adalat

• No court fees charged, fee refunded if case settled at Lok Adalat
• Relaxed procedural laws, parties can interact with judges directly
• Binding decision with execution capability via legal process.

Ombudsman 

• An Ombudsman is a representative appointed by a government, organization, or legislature to investigate complaints and resolve issues, often through recommendations or mediation. 
• Ombudsmen are typically tasked with identifying systemic problems and addressing grievances in the public sector, as well as certain elements of the private sector. 
• The ombudsman system has been established in India, with designated individuals tasked with handling grievances and complaints in sectors such as banking and insurance. 
• The advantage of an ombudsman is that they provide an independent examination of complaints, avoiding conflicts of interest. 
• However, the success of the ombudsman system depends on the selection of an appropriate individual and cooperation from within the state.

Lokpal and Lokayukta 

• Lokpal and Lokayukta are anti-corruption ombudsman organizations in India, recognized by The Lokpal and Lokayukta Act, 2013. 
• This legislation targets corruption by public servants and applies to those in and outside of India, with the exception of the Prime Minister in certain areas such as international relations and security.
• Lokpal has jurisdiction over the Prime Minister, ministers, and members of Parliament, except in matters relating to parliamentary speech and voting. The bureaucracy, including Group A, B, C, and D officials, is also covered by the Act.
• The Act requires public servants to declare their assets and provides for the procedure for conducting investigations into allegations of corruption. 
• The inquiry must be approved by at least two-thirds of the members of Lokpal and held in camera. If the complaint is dismissed, the records of the inquiry will not be made public.

According to the Act, the Lokpal shall consist of: 

• The Lokpal shall have a chairperson who has a background as a Chief Justice or Judge of the Supreme Court with 25+ years of expertise in anti-corruption, public administration, vigilance or finance.
• The total number of Lokpal members shall not exceed 8, with 50% of them being Judicial Members.

The Lokpal and Lokayuktas Act of 2013 established anti-corruption ombudsman institutions in India with the power to investigate and prosecute acts of bribery and corruption by public servants. The Lokpal is composed of a chairperson with a background in judicial matters and anti-corruption and not more than 8 members, with 50% being judicial members. The Lokpal has the powers equivalent to the police and Central Vigilance Commission and has an inquiry and prosecution wing to deal with corruption cases. The act also mandates the establishment of Lokayuktas in every state to deal with complaints against public functionaries. Some states had already established Lokayuktas before the enactment of this act.