Conciliation can be defined as a technique of Alternative Dispute Resolution (ADR) that settles disputes between disputant parties without interference of the Court. It is a voluntary, confidential and a private dispute resolution mechanism, whereby a neutral third party, known as the conciliator, tries to break the deadlock and encourage parties to reach an amicable and beneficial solution.
In India this process is governed by ‘The Arbitration and Conciliation Act, 1996’. This act bestows certain duties and powers upon the conciliator to ensure a peaceful settlement of dispute.
APPOINTMENT OF CONCILIATORS
According to section 64 of the act, the appointment of conciliators is as follows:
- In case of a single conciliator, the disputant parties must agree upon the same name.
- In case of two conciliators, the disputant parties shall appoint one conciliator each.
- In case of three conciliators, the disputant parties must appoint one conciliator each and for the third conciliator they must agree upon the same name, who shall act as the presiding conciliator.
ROLE OF CONCILIATOR
A conciliator is not bound by the rules of the Indian Evidence Act (1872) or the Code of Civil Procedure (1908). However, as per section 66, they shall not ignore the principles of natural justice. Section 67 of the same act, explicitly talks about the role of conciliators as follows:
- The most important role of a conciliator is to act in an independent and impartial manner while encouraging the disputant parties to reach a mutually accepted agreement. [67 (1)]
- While acting fair, justice and objective, the conciliators should take into consideration all aspects that influence the relationship of the disputant parties such as their rights and obligations, circumstances surrounding the dispute and usage of trade to name a few. [67 (2)]
- While taking into consideration all aspects and even requests by the disputant parties, the conciliator has the discretion to conduct the conciliation proceedings in any manner s/he considers appropriate and beneficial for resolution. [67 (3)]
- The conciliator has the authority to make proposals either oral/written or without stating reasons for the settlement of dispute at any stage of the proceedings. [67 (4)]
In the leading case of Haresh Dayaram Thakur vs. State of Maharashtra & Ors. The apex court observed that conciliators are untrammelled by procedural law and vested with powers to decide the procedure to be followed for the very reason of assisting the disputant parties.
Another important aspect is duty of the conciliator to maintain confidentiality in all matters related to the conciliation proceedings. However, any information that is a fact relating to the dispute should be communicated to the other parties. Therefore, it would not be wrong to say that a conciliator aims to create a harmonious and cooperative atmosphere by initiating a positive dialogue between disputant parties in an attempt to reduce misunderstandings and repose trust and confidence with an objective of settlement of dispute without interference of the Court. In this manner the conciliator plays a very proactive role in guiding the parties by suggesting and advising them on the various solutions by assessing the merits and demerits of each and every case to arrive at a beneficial final settlement.
RESTRICTIONS ON THE ROLE OF A CONCILIATOR
Section 80 of the same act places the following restrictions on the role of a conciliator:
- The conciliator is prohibited to act as a witness against any disputant party in any judicial or even arbitral proceedings.
- They are further prohibited to act as representative or counsel of any party involved in conciliation proceedings.
Conciliation as a mechanism for alternative dispute resolution is simple, convenient and cost effective for the disputant parties. However, its success lies in the role of conciliator without whom it would be impossible to reach an amicable settlement of dispute.
AUTHOR – JANVI JOHAR