COURSE-IV: CLINICAL COURSE-II:

ALTERNATIVE DISPUTE RESOLUTION SYSTEMS

COURSE TEACHER- DR. SAMINA NAHID BAIG
UNIT – III
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UNIT III - Conciliation: Meaning; Different kinds of conciliation facilitative, evaluative, court-annexed,
voluntary and compulsory; Qualities of a conciliator; Duties of a conciliator; Role of a conciliator; Stages of
conciliation; Procedure; Conciliation under statutes- Industrial Disputes Act, 1947; Family Courts Act,
1984; Hindu Marriage Act, 1955; Arbitration and Conciliation Act, 1996.
IMPORTANT QUESTIONS:

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1. WHAT IS CONCILIATION?
The Halsbury’s Laws of England defines Conciliation as a process of persuading the parties to reach an
agreement. Conciliation may comprehensively be defined as a non-adjudicatory and non-adversarial. ADR
mechanism involving a settlement procedure wherein an impartial third party (conciliator) enables and steers the
disputant parties to arrive at a satisfactory and acceptable settlement of a dispute.
It is considered as an effective and meaningful alternative to litigation for resolution of disputes through the guidance
and assistance of a neutral and impartial third party.
Conciliation is a voluntary process and the conciliator has no authority to impose on the parties a solution to the
dispute. Like any other ADR process the sanctity of conciliation is the mutual determination of the parties to amicably
resolve their disputes through an ADR mechanism.

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Conciliation is a voluntary process and the conciliator has no authority to impose on the parties a solution to the
dispute. Like any other ADR process the sanctity of conciliation is the mutual determination of the parties to amicably
resolve their disputes through an ADR mechanism.
The consensual nature of the dispute resolution process allows parties to join in a friendly search for an amicable
solution, without procedural restraints or protracted battles over formal technicalities and the parties are encouraged to
visualise options which provide solutions keeping in view their interests and priorities.
2. HISTORY OF CONCILIATION IN INDIA
In the year 1984, India faced with the problem of surmounting arrears the Himachal Pradesh High Court evolved
a unique project for disposal of cases pending in courts by conciliation.
This was also been recommended by the Law Commission of India in its 77th and 131st reports and the conference of
the Chief Justices and Chief Ministers in December 1993.
The Mali math Committee had also inter alia recommended the establishment of conciliation courts in India. In the
meantime, the UNCITRAL had adopted the UNCITRAL Conciliation Rules, 1980 and the General Assembly of the
United Nations had recommended the use of these rules, therefore, the Parliament of India found it expedient to make
a law respecting conciliation, and the Arbitration and Conciliation Act, 1996 was enacted.
Conciliation was afforded an elaborate codified statutory recognition in India with the enactment of the Arbitration
and Conciliation Act, 1996 and Part III of the Act comprehensively deals with conciliation process in general.
The chapter on conciliation under the Arbitration and Conciliation Act, 1996 is, however, essentially based on the
UNCITRAL Conciliation Rules, 1980. Thereafter, post litigation conciliation was recognized as a mode of dispute
resolution when section 89 was incorporated in the Code of Civil Procedure, 1908 which affords an option for
reference of sub judice matters to conciliation with the consent of parties for extra judicial resolution.
3. DIFFERENT KINDS OF CONCILIATION

a. Facilitative Conciliation: The conciliator does not recommend solutions but only facilitates mutually
agreeable settlements.

In other words, he shuns opinions and judgment but only merely assists the parties to clarify their
communications, interests and priorities. He helps parties to explore possibilities of enhancing the mutual
interests of the parties. purely, facilitative conciliation is interest-based negotiation.

b. Evaluative Conciliation: The conciliator recommends resolution or offers persuasive opinions of key
matters. In other words, he expresses his opinion on the merits of the issues in dispute, in order to move the
parties to a settlement.

He makes assessment and expresses his views on the merits of the rights of the parties in the dispute.
It has a right based approach. Parties have less control over the outcome.

c. Court-Annexed Conciliation: This is Ordered or arranged through a State court and undertaken by a
judicial officer or a court welfare officer or by an outside third party approved by the court at the Pre-Trial, In
Trial and Post Trial stage of a court case.
d. Voluntary Conciliation: When the parties go for conciliation on their free will without the compulsion of law

e. Compulsory Conciliation: When the parties compulsory has to refer the disputes to conciliation under the
compulsion of law. For ex. Conciliation under the Industrial Disputes Act, 1947

f. Online Conciliation: When the conciliation is conducted online via electronic medium.

4. WHO IS A CONCILIATOR?

The conciliator is a person who assists the disputing parties in mutually reaching an agreed
solution to a dispute.

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 He is a person who assists the parties in an independent and impartial manner in their attempt to
reach an amicable solution. He is a neutral person. He tries to bridge the gulf between the parties. He
is a catalytic agent to settle the dispute.

5. APPOINTMENT OF CONCILIATOR

Section 64 of the Arbitration of Conciliation Act, 1996 states appointment of the conciliators.
When the invitation to the conciliation is accepted by the other party, the parties have to agree on the composition
of the conciliation tribunal. In the absence of any agreement to the contrary, there shall be only one conciliator.
The conciliation proceeding may be conducted by a sole conciliator to be appointed with the consent of both the
parties, failing to which the same may be conducted by two conciliators (maximum limit is three), then each party
appoints own conciliator ,and the third conciliator is appointed unanimously by both the parties.
The third conciliator so appointed shall be the presiding conciliator. The parties to the arbitration agreement
instead of appointing the conciliator themselves may enlist the assistance of an institution or person of their choice
for appointment of conciliators.
But the institution or the person should keep in view during appointment that, the conciliator is independent and
impartial.
6. QUALITIES OF A CONCILIATOR
1. Independence and impartiality
2. Physically and psychologically fit for the rigors of his task
3. Serious Efforts to reach an agreement.
4. Specialist in human relations
5. Honest, polite, tactful, self-confident, even tempered, patient.
6. Good command over language
7. Expressive
8. Communication with the parties
9. Tactful
10. Clear-headedness
11. Mature judgment
12. Common sense
13. Practical mindedness
14. Friendly personality
15. Sense of humour

7. DUTIES OF A CONCILIATOR
a) Duty to be impartial, independent
b) Duty To establish relationship
c) Duty To give serious approach
d) Duty Collect information
e) Duty To select appropriate meeting
f) Duty To conduct the joint meetings informally
g) Duty to encourage useful discussion uninterruptedly
h) Duty not to criticize
i) Duty not to strengthen one party’s stand
j) Duty not to comment on merits of either party’s stand
k) Duty not to hurry the parties
l) Duty to know the position of parties
m) Duty to persuade the parties separately.
n) Duty not to endorse a parties stand
o) Duty not to initiate solution when the parties are determined in their respective positions
p) Duty to endure parties readiness
q) Duty to explore all the aspects of the issues in dispute
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 r) Duty to encourage parties to offer solutions
s) Duty to assist the parties by making suggestions at the right time
t) Duty to be resolute/ BE FIRM
u) Duty to exhaust all avenues
v) Duty to include all issues
w) Duty to take the parties agreement on the issues
x) Duty to advise the parties to go in for other ADR procedure when conciliation fails

8. ROLE OF A CONCILIATOR sec 67

The conciliator assists the parties in an independent and impartial manner in their attempt to reach an amicable
settlement of their dispute.
The conciliator will be guided by principles of neutrality, fairness and justice, He will be giving consideration to the
rights and obligations of the parties, the usages of the trade concerned and the circumstances surrounding the dispute,
and any previous business practices between the parties.
The conciliator may conduct the conciliation proceedings in such a manner as he considers appropriate, taking into
account-
a. The circumstances of the case,
b. The wishes the parties may express, including
c. Any request by a party that the conciliator hear oral statements and
d. The need for a speedy settlement of the dispute.
The conciliator may, at any stage of the conciliation proceedings-
a. make proposals for a settlement of the dispute.
b. Such proposals need not be in writing and need not be accompanied by a statement of the reasons.

9. STAGES OF CONCILIATION

I. Submission of statement of disputes by the parties-65-

once appointed the conciliator request each party to submit a statement which sets out the general nature of
the dispute and the points at issue. .
A copy of the statement is to be given to the other party. If necessary, the conciliator may ask the parties to
submit further, written statement and other evidence.

II. Assistance by the conciliator in parties’ negotiations – 66 (1),(2)(3)

The conciliator assists the parties in an independent and impartial manner in their attempt to reach an
amicable settlement.
In this task of conciliating between the disputing parties, the conciliator shall be guided by the principles of
objectivity, fairness and justice. He has also to consider the rights and obligations of the parties’ trade usages
and circumstances surrounding the dispute, including previous business practices between the parties.
Conduct the proceedings as he thinks appropriate

III. Settlement proposal by the conciliator – 66(4)

The conciliator, may at any stage, propose a settlement, even orally, and without stating the reasons for the
proposal.

IV. Supply of material and evidence and attendance of meetings by the parties – 71

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 Parties themselves must in good faith, cooperate with the conciliate and supply the needed written material.
provide evidence and attend meetings.

V. Formulation and submission of terms of possible settlement – 73

If the conciliator finds that there “exist elements of settlement” which may be acceptable to the parties, then
he shall formulate the terms of a possible settlement and submit the same to the parties for their observation.

VI. Reformulation of terms of possible settlement – 73

On receipt of the observations of the parties, the conciliator may reformulate the terms of a possible settlement
in the light of such observation.
VII. Agreement for settlement and drawing up of settlement agreement – 73(2)
If, ultimately the settlement is reached, then the parties may draw and sign a written settlement agreement. At
their request, the conciliator can help them in drawing up the same.
10. Principles of Procedure

a) Independence and impartiality [Section 67(1)]-

The conciliator should be independent and impartial. He should assist the parties in an independent and
impartial manner while he is attempting to reach an amicable settlement of their dispute.
b) Fairness and justice [Section 67(2)]-
The conciliator should be guided by the principles of fairness and justice. (Principles of Natural Justice
like Rule against bias, audi alterem partem etc.) He should take into consideration, among other things,
the rights and obligations of the parties, the usages of the trade concerned, and the circumstances
surrounding the dispute, including any previous business practices between the parties.
c) Confidentiality [Section 70]-
The conciliator and the parties are duly bound to keep confidential all matters relating to conciliation
proceedings. Similarly, when a party gives an information to the conciliator on the condition that it be
kept confidential, the conciliator should not disclose that information to the other party.
d) Disclosure of the information [Section 70]-
When the conciliator receives an information about any fact relating to the dispute from a party, he should
disclose the substance of that information to the other party. The purpose of this provision is to enable the
other party to present an explanation which he might consider appropriate.
e) Co-operation of the parties with Conciliator [S. 71]-
The parties should in good faith cooperate with the conciliator. They should submit the written materials,
provide evidence and attend meetings when the conciliator requests them for this purpose.

11. PROCEDURE OF CONCILIATION

(i) COMMENCEMENT and APPOINTMENT (SEC 62,63,64 OF Arbitration and Conciliation Act,
1996),
(ii) SUBMISSION AND ROLE (SEC 65,66,67,68,69 Arbitration and Conciliation Act, 1996),
(iii) CONDUCT (sec 69 (1) and 67 Arbitration and Conciliation Act, 1996
(iv) TERMINATION (SEC 76) Arbitration and Conciliation Act, 1996

1. COMMENCEMENT OF THE CONCILIATION PROCEEDINGS & AND APPOINTMENT OF

CONCILIATORS (SEC 62,63,64)

The conciliation process commences when the disputing parties agree to conciliate and a neutral conciliator is
appointed.
The party initiating conciliation sends a written invitation to conciliate to the other party briefly identifying the
subject matter of the dispute. The Conciliation proceedings commence when the other party accepts in writing the
invitation to conciliate.

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 Thus, conciliation agreement should be an ad hoc agreement entered by the parties after the dispute has actually
arisen and not before. Even if the parties incorporate conciliation clauses in their agreements, still conciliation would
commence only if the other party accepts the invitation of one party to conciliate in case of a de facto dispute.
Thus, unlike in the case of an arbitration agreement, Part III of the Arbitration and Conciliation Act, 1996 does not
envisage any agreement for conciliation of future disputes. It only provides for an agreement to refer the disputes to
conciliation after the disputes have arisen.
In conciliation proceedings ordinarily there is one conciliator unless the parties agree that there shall be two or
three conciliators. Even in case of plurality of conciliators they are supposed to act jointly. An uneven number of
conciliators is not necessary in conciliation since the task of the conciliators is to make recommendations for a
settlement and not to render binding decisions. In conciliation proceedings with one conciliator, the parties may agree
on the name of a sole conciliator and in conciliation proceedings with two conciliators, each party may appoint one
conciliator.
The parties may also request any institution or person to recommend suitable names of conciliators or directly
appoint them and such person or institution while discharging this responsibility should have regard to aspects as are
likely to secure the appointment of an independent and impartial conciliator.

2. SUBMISSION OF STATEMENT TO CONCILIATOR (sec 65 A& C A 1996)

 The conciliator may request each of the parties to submit a brief written statement describing the general
nature of the dispute and the points at issue, with a copy to the opposite party. At any stage of the
conciliation proceedings the conciliator may request a party to submit to him such additional information as
he deems appropriate.

 The conciliator is supposed to assist the parties in an independent and impartial manner in their attempt to
reach an amicable settlement of their dispute.

 A conciliator assists parties by helping them to initiate and develop positive dialogue, clarify
misunderstandings, create faith upon one another and generate a congenial atmosphere required for
harmonious and cooperative problem-solving.

 In order to justify his position the conciliator must be an impartial person. The parties should be able to
repose trust and confidence in him so as to enable them to share their secrets and their thinking process with
the conciliator with the belief that the same will not be divulged to other party without specific instructions in
that regard.

 The conciliator may conduct conciliation proceedings in such a manner as he considers appropriate, taking
into account the circumstances of the case and the wishes of the parties.

 The conciliator has wide procedural discretion in shaping the dynamic process towards a settlement. The
process of conciliation, inter alia, involves creating a constructive bonding between the parties to a dispute to
steer them towards resolution.

 The conciliator is not bound by the Code of Civil Procedure, 1908 or the Indian Evidence Act, 1872. He
is to be guided by principles of objectivity, fairness and justice giving due consideration to the rights and
obligations of the parties, the usages of the trade concerned and the circumstances surrounding the dispute,
including any previous business practices between the parties.

 The conciliator may invite the parties to meet him or may communicate with them orally or in writing.
He may meet or communicate with the parties together or with each of them separately.
 The conciliator may hold several joint or private meetings with the parties so as to enable the parties to clarify
their cases and so as to persuade the parties to arrive at a mutually acceptable solution.

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 Unless the parties have agreed upon the venue of conciliation proceedings the conciliator is supposed to
decide the venue of conciliation proceedings in consultation with the parties.

 Thus, the conciliator is vested with extensive power to choose and mould the procedure to be followed by him
untrammelled by the procedural laws, albeit in consultation with the parties.
 In order to facilitate the conduct of the conciliation proceedings, the parties, or the conciliator with the consent
of the parties, may arrange for administrative assistance by a suitable institution or person.

 This shows that depending upon the requirement from case to case basis the conciliator may or may not adopt
a structured process in conciliation.

 The role of the conciliator is to assist the parties to arrive at an amicable settlement.

 The conciliator may, at any stage of the conciliation proceedings, himself make proposals for a settlement of
the dispute

 In the Indian context the conciliator therefore plays an evaluative role while managing the process of
conciliation as opposed to a mere facilitator.

 The conciliator assesses the respective cases of the parties and apart from acting as a facilitator suggests and
advices the parties on various plausible solutions to the parties so as to enable the parties to choose the best
possible and apt solution.

 He attempts to get the parties to accept the merits and demerits of their cases thereby leading them to a
mutually acceptable solution.

 The conciliator, in this manner plays a more proactive and interventionist role in persuading the parties to
arrive at a final settlement.

 In actual practice conciliator needs to be a person who is not only well-informed and diplomatic but can also
influence the parties by his persona and persuasive skills. However, if the system of conciliation is to succeed
as a proficient ADR mechanism professional training of conciliators needs to be a mandatory requirement.

3. THE SETTLEMENT AGREEMENT -Sec 73

 When it appears to the conciliator that there exist elements of a settlement, which may be acceptable to
the parties, he is supposed to formulate the terms of a possible settlement and submit them to the parties
for their observations.
 After receiving the observations of the parties, the conciliator may reformulate the terms of a possible
settlement in the light of such observations enjoin upon the conciliator to draw up and authenticate a
settlement agreement.

 He should ensure that the parties have full understanding of the settlement terms.
 The agreement must embody the terms and conditions of the settlement with clarity and precision. It is
open to the parties to settle some of their disputes by conciliation and leave the unresolved disputes
between them for resolution by other modes of adjudication.

 The settlement agreement must also bear the signatures of the parties.
 Once the parties sign the settlement agreement, it shall be final and binding on the parties and persons
claiming under them respectively.

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  The settlement agreement drawn up in conciliation proceedings has the same status and effect as if it is
an arbitral award on agreed terms on the substance of the dispute rendered by an arbitral tribunal under
section 30 of the Arbitration and Conciliation Act, 1996.

 However it is only that agreement which has been arrived at in conformity with the manner stipulated and
form envisaged and got duly authenticated in accordance with section 73 of the Arbitration and
Conciliation Act, 1996, which can be assigned the status of a true settlement agreement and can be
enforced as an arbitral award.

 Therefore, a settlement agreement arrived in private conciliation proceedings can be enforced by

executing the same in a civil court as if it were a decree of the court.

4. TERMINATION OF CONCILIATION PROCEEDINGS sec 76

 A successful conciliation proceeding concludes with the drawing and signing of a conciliation settlement
agreement.

 The signing of the settlement agreement by the parties, on the date of the settlement agreement
terminates conciliation proceedings.

 That apart, any party may terminate conciliation proceedings at any time even without giving any reason
since it is purely voluntary process.

 The parties can terminate conciliation proceedings at any stage by a written declaration of either party.

 A written declaration of the conciliator, after consultation with the parties, to the effect that further
efforts at conciliation are no longer justified, also terminates conciliation proceedings on the date of such
declaration.

 CASE LAWS:

1. Haresh Dayaram Thakur v. State of Maharashtra and Ors 2000 (3) SCR 1140

 OBSERVATIONS BY THE COURT

Conciliator is a person who is to assist the parties to settle the disputes between them amicably. For this purpose, the
conciliator is vested with wide powers to decide the procedure to be followed by him untrammeled by the procedural
law like the code of civil procedure or the Indian Evidence Act, 1872.
When the parties are able to resolve the dispute between them by mutual agreement and it appears to the conciliator
that their exists an element of settlement which may be acceptable to the parties he is to proceed in accordance with
the procedure laid down in section 73, formulate the terms of a settlement and make it over to the parties for their
observations; and the ultimate step to be taken by a conciliator is to draw up a settlement in the light of the
observations made by the parties to the terms formulated by him.
The settlement takes shape only when the parties draw up the settlement agreement or request the conciliator to
prepare the same and affix their signatures to it. Under Sub-section (3) of Section 73 the settlement agreement signed
by the parties is final and binding on the parties and persons claiming under them. It follows therefore that a
successful conciliation proceeding comes to end only when the settlement agreement signed by the parties comes into
existence.

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 It is such an agreement which has the status and effect of legal sanctity of an arbitral award under Section 74”.
2. Mysore Cements Ltd. v. Svedala Barmac Ltd.
2003(2) SCC 1028

 LAW IN QUESTION
In this case it was said that Section 73 of the Act speaks of Settlement Agreement. Sub-section (1) says that when it
appears to the Conciliator that there exist elements of settlement which may be acceptable to the parties, he shall
formulate the terms of a possible settlement and submit them to the parties for their observation. After receiving the
observations of the parties, the Conciliator may reformulate the terms of a possible settlement in the light of such
observations.
 OBSERVATIONS BY THE COURT
In the present case, the court did not find there any such formulation and reformulation by the Conciliator, under Sub-
section (2), if the parties reach a settlement agreement of the dispute on the possible terms of settlement formulated,
they may draw up and sign a written settlement agreement. As per Sub-section (3) when the parties sign the
Settlement Agreement, it shall be final and binding on the parties and persons claiming under them respectively.
Under Sub-section (4), the Conciliator shall authenticate the Settlement Agreement and furnish a copy thereof to each
of the parties. From the undisputed facts and looking to the records, it is clear that all the requirements of Section 73
are not complied with.

12. ADVANTAGES OF CONCILIATION

1) COST EFFECTIVE AND EXPEDITIOUS PROCESS –

Conciliation is an economical and expeditious mechanism for resolution of disputes in comparison to litigation and
arbitration, which makes it an excellent ADR Mechanism. The cost management tools and expertise of the conciliator
generally prevent multiplication of actual costs to the parties and seek to make it cost efficient.
48 The conciliator follows a simplified procedure suited to the aspirations of the parties and keeping in mind the need
for speedy settlement of the dispute. Moreover, the time management tools applied by the conciliator prevent
dragging on of conciliation proceedings for longer periods and ensure its conclusion within a reasonable time frame.
The end result in conciliation is a negotiated settlement which is treated to be an arbitral award on agreed terms,
thereby obviating the possibility of successive appeals and finally resolving the dispute in an expeditious and cost-
effective manner.
2) AUTONOMY AND CONVENIENCE OF PARTIES-

Conciliation is flexible and convenient. The parties are free to agree on the procedure to be followed by the
conciliator, the time and venue of the proceedings and thus eventually control the process.
The conciliator may conduct the conciliation proceedings in such a manner as he considers appropriate, taking into
account the circumstances of the case, convenience of the parties and the wishes the parties may express.
A very commendable feature of conciliation is that the parties can withdraw from conciliation at any stage. Unless
a party consents to the initiation and continuance of conciliation and accepts the resultant settlement agreement he
cannot be said to be bound by the process, and he may walk out from conciliation proceedings at any time.
This is unlike arbitration and litigation where decisions can be made even if a party walks out. In litigation or
arbitration what solution or resolution would be contained in the judgment or award is not within the control or prior
knowledge of the parties and moreover the ultimate decision is based on a straightforward decision on merits keeping
in view the rights and positions of the parties.
In conciliation however the parties control the outcome and can incorporate terms and conditions in the settlement
agreement as per mutual agreement. They can devise creative solutions for their disputes at one go which may not
have been within the contemplation of an arbitrator or a judge.
They can also decide how their rights and liabilities are going to be actually worked out on resolution of the dispute
and chalk out ingenious modalities for complying with the basic terms of settlement.
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 3) PARTY SATISFACTION AND HARMONY –

Unlike litigation and arbitration where one party wins and the other loses, in conciliation both parties are winners as
the decision is acceptable to both. Both parties are in favour of the decision, as until both parties agree to a proposal,
the settlement or agreement does not take place.
Therefore, it is a win-win situation for both the parties as both the parties are satisfied with the agreement. Such win-
win situation enables them to retain good relationship for times to come unlike litigation and arbitration where the
parties on account of the win-loss equation are not able to continue or rebuild their relationship. Even where the
conciliation proceedings do not fructify into a settlement, they prove to be useful by enabling the parties to understand
each other’s versions, positions and aspirations in a better perspective.
4) CONFIDENTIALITY –

In contradistinction to judicial proceedings conciliation is a private closed-door affair and therefore offers privacy
and confidentiality. In fact, confidentiality in conciliation proceedings is a statutory guarantee.
The conciliator and the parties are supposed to keep confidential, all matters relating to the conciliation proceedings.
The parties are also precluded from relying upon or introducing as evidence in subsequent arbitral or judicial
proceedings views expressed or suggestions made by the other party in respect of a possible settlement of the dispute,
admissions made by the other party in the course of conciliation proceedings, proposals made by the conciliator and
the fact that the other party had indicated his willingness to accept a proposal for settlement made by the conciliator.
which makes conciliation an excellent dispute resolution mechanism. Even during the course of conciliation
proceedings where a party gives any information to the conciliator subject to a specific condition that it be kept
confidential, the conciliator is not supposed to disclose that information to the other party.
This ensures that even in the eventuality of failure of conciliation proceedings neither party is able to derive undue
benefit out of any proposal, view, statement, admission, etc. made by the opposite party during conciliation
proceedings.
The process of conciliation provides an opportunity for settlement of disputes without publicity. The conciliator is also
precluded from acting as an arbitrator or as a representative or counsel of a party in any arbitral or judicial proceeding
in respect of a dispute that is the subject of the conciliation proceedings nor can he be presented by the parties as a
witness in any arbitral or judicial proceedings.
Even during the course of conciliation proceedings where a party gives any information to the conciliator subject to a
specific condition that it be kept confidential, the conciliator is not supposed to disclose that information to the other
party.
This ensures that even in the eventuality of failure of conciliation proceedings neither party is able to derive undue
benefit out of any proposal, view, statement, admission, etc. made by the opposite party during conciliation
proceedings. The process of conciliation provides an opportunity for settlement of disputes without publicity.
The conciliator is also precluded from acting as an arbitrator or as a representative or counsel of a party in any arbitral
or judicial proceeding in respect of a dispute that is the subject of the conciliation proceedings nor can he be presented
by the parties as a witness in any arbitral or judicial proceedings.
5) ENFORCEABILITY OF CONCILIATION SETTLEMENT AGREEMENT

The settlement agreement drawn up in conciliation proceedings has the same status and effect as if it is an arbitral
award on agreed terms on the substance of the dispute rendered by an arbitral tribunal under section 30 of the
Arbitration and Conciliation Act, 1996. Thus, the settlement agreement in conciliation is executable as a
decree of the civil court.
It is open to any party to apply for execution of the settlement agreement by filing an execution petition before
the civil court. The expeditious enforcement of a conciliation settlement agreement in a summary manner i.e. by
way of execution proceedings in a civil court is the principal advantage attached with conciliation.

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 13. CONCILIATION UNDER VARIOUS ACTS:
1) CONCILIATION UNDER THE CIVIL PROCEDURE CODE, 1908 (“CPC”)
A 1999 amendment to the CPC enabled the courts to refer pending cases to arbitration, conciliation and mediation to
facilitate early and amicable resolution of disputes. Prior to the amendment of the CPC, the Act did not contain any
provision for reference by courts to arbitration or conciliation in the absence of the agreement between the parties to
that effect.
However, pursuant to the insertion of section 89 in the CPC, a court can refer the case to arbitration, conciliation,
judicial settlement or mediation, “where it appears to the court that there exist elements of settlement which may be
acceptable to the parties.” Section 89 of the CPC empowers the court to formulate the terms of settlement and give
them to the parties for their observation and after receiving the observations, reformulate the terms of a possible
settlement and refer the same for arbitration, conciliation, judicial settlement or mediation. Once a court refers a case
to conciliation, the provisions shall not apply and the parties shall be bound by the provisions of the Act. This allows
the parties to terminate the conciliation proceedings in accordance with section 76 of the Act, even if the dispute has
not been resolved, thereby rendering the entire dispute resolution process futile.
2) CONCILIATION UNDER THE HINDU MARRIAGE ACT

Conciliation is a statutorily acclaimed mode of settlement under various legislations. The Hindu Marriage Act, 1955
enjoins upon the court to make every endeavour to bring about reconciliation between the parties with the discretion to
refer the matter to any third person for the purpose of effecting reconciliation.
The matrimonial courts in Delhi have since long utilized the process of conciliation between the parties to
matrimonial disputes. Chamber meetings are frequently held by the judges so as to counsel the parties and persuade
them to reconcile their differences and arrive at an amicable settlement. Proceedings are also conducted in camera.
Section 23 (3) of the Hindu Marriage Act, 1955 reads as follows “…Before proceeding to grant any relief under this
Act, it shall be the duty of the court in the first instance, in every case where it is possible so to do consistently with
the nature and circumstances of the case, to make every endeavour to bring about a reconciliation between the
parties…”;
This has been emphasized by the Supreme Court in Jagraj Singh v. Birpal Kaur, A.I.R. 2007 SC 2083. Section 23
(3) of the Hindu Marriage Act, 1955 reads as follows: “...For the purpose of aiding the court in bringing about such
reconciliation, the court may, if the parties so desire or if the court thinks it just and proper so to do, adjourn the
proceedings for a reasonable period not exceeding fifteen days and refer the matter to any person named by the parties
in this behalf or to any person nominated by the court if the parties fail to name any person, with directions to report to
the court as to whether reconciliation can be and has been, effected and the court shall in disposing of the proceeding
have due regard to the report…” Experience shows that the effort has yielded good results. The availability of limited
time with judges, however, has been a major constraint in judicial conciliation proceedings. Now with the
establishment of mediation centres such disputes requiring greater time and effort are normally referred to the court
annexed mediation centres.
3) CONCILIATION UNDER THE FAMILY COURTS ACT
Of late Family Courts have also been established in conformity with the mandate of the Family Courts Act, 1984. The
Family Courts Act, 1984 also enjoins upon the judges in the first instance to assist and persuade the parties in arriving
at a settlement. The family court judges also employ the generic process of conciliation while assisting the parties to
arrive at a consensual resolution. Section 9(1) of the Family Courts Act, 1984 reads as follows: “…In every suit or
proceeding, endeavour shall be made by Family Court in the first instance, where it is possible to do so consistent with
the nature and circumstances of the case, to assist and persuade the parties in arriving at a settlement in respect of the
subject-matter of the suit or proceeding and for this purpose a Family Court may, subject to any rules made by the
High Court, follow such procedure as it may deem fit.
4) CONCILIATION UNDER INDUSTRIAL DISPUTES ACT, 1947

Conciliation also continues to be utilized as a mode of dispute resolution under the Industrial Disputes Act, 1947 in
Delhi. It has been statutorily recognized as a method of dispute resolution in relation to disputes between workmen
and the management of the industry. In fact, conciliation has been formalized as a regular drill in labour relations.

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 The Industrial Disputes Act, 1947 provides for appointment of ‘Conciliation Officers’ charged with the duty of
mediating in and promoting the settlement of industrial disputes ‘Conciliation Boards’ for promoting settlement of
industrial disputes.
A conciliation officer is a friend philosopher and guide of the disputing parties. The conciliation officer is supposed to
investigate the dispute without delay with the object of bringing about a settlement. In an industrial dispute in respect
of public utility service there is an obligation on the conciliation officer to hold conciliation proceedings
. Conciliation proceedings under the Industrial Disputes Act, 1947, have however failed to achieve the purpose to the
desired extent. Delays, indifferent attitudes and lack of commitment on the part of the conciliation officers,
adjournments are all inevitable symptoms of the governmental structure, which has weakened the voluntary fabric.
Furthermore, on account of the attitude of unrealistic demands on the part of the workers, the authoritarianism on the
part of the managements and lack of trust between the parties and distrust of parties in the conciliation officer, the
conciliation system in the present form is unable to promote realization of genuine conciliation goals.

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