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Conciliation

The settlement of disputes through discussions without litigations. It is a process by which discussion between parties are made through the participation of conciliator.

It is a process to help and assist the parties to reach a amicable settlement on their disputes.

The conciliator adopts his own method to settle the disputes and it need not be a strict legal procedure.

It can be resorted to without any agreement.

The acceptance of the other party is mandatory for the offer made by the first party.

Importance:

It has become an important means of settlement in many legal fields,

Industrial Disputes Act 1947, Sec.4 on Appointment of conciliation officers and Sec.5 on Board of conciliation

Hindu Marriage Act 1955, Sec.23.2, court must conduct conciliation proceedings before granting relief sought for.

Family Courts Act 1984, Sec 9 persuade the parties by conciliation to arrive at a settlement.

Arbitration and conciliation Act 1986, all such matters which are referred to arbitration can be brought under conciliation process too.

(ex) Compensation in breach of contract, Time barred claims, Non Contractual claims like compensation claim in accident cases.

Advantages: Held in private, Confidentiality is maintained. Informal, Simple procedures are followed.

There is no time delay.

The expenses are very low when compared to others

No lengthy proceedings, time and money savings.

The conciliator is a technical person and his decision will be superior compared to civil court judge

There is consent by both the parties and therefore the settlement is final and enforceable.

Disadvantages: He is not a legally qualified person

Since simple procedure is followed there is high probability of injustice being delivered.

Kinds: Facilitative- He does not gives opinion but merely assist the parties to clarify their communications, interests and priorities.

Evaluative- He gives his opinion on the merits of the issues so that the parties approach for settlement.

Court Annexed Conciliation- Here the judges, lawyers and litigants become participants therein, thereby giving them a feeling that negotiated settlement is achieved by all the three of them.

Voluntary Conciliation- Here the parties are free to make use of conciliation under their free will

Compulsory Conciliation- If voluntary conciliation is very unlikely and parties do not agree even to meet each other for direct negotiations, then the procedure is made compulsory. It is mostly seen in Labor cases.

Qualifications: In appointing conciliator the parties may enlist the assistance of suitable institutions

He must be independent and impartial

Parties should have confidence in his integrity and neutrality

He should be physically and psychologically fit He should get along well with the people.

He must be honest, polite and should have good command of language.

He needs tact, ability to control and guide their joint discussion

He must possess common sense and practical mindedness

He should have friendly personality Should have special alertness of mind

Should be familiar with laws concerning IR and

ID In case of third conciliator it is advisable to appoint a conciliator other than the nationality of the parties.

Number of conciliators: Sec.63 Usually one, but if parties request it can be more than one.

If there are more than one they should act jointly.

Appointment of conciliator: Sec.64 tells that there shall be one or more conciliators and third conciliator shall be the presiding conciliator.

Role of Conciliator: Sec.66/67 He is not bound by CPC 1908, Indian Evidence Act 1872, he can decide his own procedure in proceedings but should follow Natural Justice.

He must assist the parties in Impartial and Independent manner

He must be guided by the principles of objectivity, fairness and justice.

He conducts in appropriate manner and also take into account the need for a speedy settlement of dispute.

At any stage he may make proposal for settlement of disputes. Restricted Roles of Conciliator: He cannot act as arbitrator or a representative of a party in any judicial proceedings in respect of a dispute which is conciliation subject

He must not be presented by the parties as a witness in any arbitral or judicial proceedings

If both the parties agree, then he can fulfill the above said roles.

Commencement of proceedings: Sec.62 Written invitation to other party on subject of dispute

On acceptance, proceedings begin On rejections, no proceedings starts If no reply is sent within 30 days it is considered as rejection by second party

Submission of statements: Sec.65 Conciliator asks for brief statements in writing on dispute.

Each party must submit and send to other party too

The facts, grounds with documents supporting his case

He can ask for further information any stage

Disclosure of Information: Sec.70 He can disclose the information to other parties for smooth settlement process.

If they mention as confidential, the conciliator should not disclose the information

Settlement Agreement: Sec.73 It is the end product of conciliation

The settlement agreement should be approved by both the parties.

Any fair, reasonable and acceptable suggestions can be incorporated in here.

After acceptance by both, it has to be signed

After signing, it is final and binding on both parties.

Termination of Proceedings: Sec.76 By signing the settlement agreement. BY written declaration of conciliator. By written declaration of parties addressed to the conciliator.

By written declaration of a party to the other party and the conciliator.

Resort to Arbitral Proceedings: Sec.77 Parties are not barred absolutely from seeking Arbitral or judicial proceedings when conciliation is pending.

It is his right.

But usually they don’t allow to initiate Judicial proceedings to avoid hindrance to Conciliation proceedings. Admissibility of Evidence in other proceedings: Sec.81 The parties are prohibited to introduce all matters that are subject to conciliation proceedings.


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Created on 2020/10/19 23:15 by • Last modified on 2021/02/08 14:20 by LawPage