He adds: «It is well established that a legal fiction cannot be extended beyond the purpose for which it is created. Section 74 of the Act creates a legal fiction to impose the status and effect of a Section 73 transaction agreement for attribution. The objective is clearly to allow the application of such agreements as an arbitral award without further adjudication procedure. Legal fiction cannot be extended to other statutes. The Supreme Court in Haresh Dayaram Thakur v. The State of Maharashtra2 decided that a conciliator`s request was to amicably assist the parties in resolving disputes. If the conciliator believes that there is an element of dispute between the parties, he or she can enter into an agreement under Section 73 of the Act. The transaction will not be concluded until the transaction agreement is signed by both parties to the dispute. Such a transaction agreement may then have the legal disqualification of an arbitration award under Section 74 of the Act. The relevant part of the judgment was highlighted in the same vein as the Ontario Superior Court at Rawlins 258 S.E.2d.187 (Application Ga. Ct. 1979), asked the courts to be extremely vigilant and to set aside transaction agreements only in exceptional cases.
For example, if there is clear evidence of coercion, fraud, bad faith or false instructions. As can be seen from the kataton of the case law, it has been repeated that a transaction agreement can only obtain the colour of a sentence if all correspondence defined in Section 73 is respected. Thus, a transaction agreement between the parties, duly authenticated by the conciliator, will have the same effect of an arbitration award under the agreed contract as an arbitral tribunal duly constituted under section 30 of the law. Given that the Indian regime distinguishes between mediation and conciliation, it is inevitable that the law will equate the two in terms of uniformity of application and recognition. Mediation will only function as a viable REL process if it is on an equal footing with conciliation and arbitration. Finally, when drafting a mediation law, Parliament must also ensure that it limits the scope of the challenge to transaction agreements. Or even if they are treated as arbitration awards, they are rendered unusable. The conciliator establishes the terms of the settlement agreement on the basis of its indications in the conciliation procedure and on the basis of the written statements and written evidence of the parties. The same thing will then be forwarded to the parties for notice, if any, and, if necessary, a reformulated transaction agreement will be developed on the basis of these notices1. An agreement between the parties to the dispute is an indispensable means in the modern trading world.