BA.LL.

B (SEMESTER-VIII)

ALTERNATE DISPUTE RESOLUTION(ADR)

DESCRIPTIVE NOTES
 SYLLABUS

LL.B. (Integrated) Five Years Degree Course

(Fourth Year) VIIIth Semester
Paper Code : LB-802
Paper II
Alternative Dispute Resolution System- II (Conciliation &Mediatiation )

Unit-I Conciliation(Lectures 10)

i. Conciliation: Application and scope, Commencement of conciliation proceedings
ii. Appointment of conciliators, Submission of statements to conciliator, Role of conciliator
iii. Administrative assistance, Communication between conciliator and parties, Disclosure of
information, Cooperation of parties with conciliator, Settlement agreement, Confidentiality,
iv. Termination of conciliation proceedings, Costs, Deposits, Admissibility of evidence in other
proceedings, Difference between Arbitration and Conciliation

Unit-II Mediation (Lectures 10)

i. Mediation: Historical development, Concept and Definition
ii. Types of Mediation
iii. Appointment, Procedure of Mediation, and Role of mediator.
iv. Advantages of Mediation and Difference between Mediation and Conciliation
Unit-III Mediation Rules and Its Applicability (Lectures 10)
i. Supreme Court‘s Module on Mediation, 2003
ii. Supreme Court (Mediation) Rules 2010
iii. Uttar Pradesh Civil Procedure Mediation Rule, 2009
iv. Applicability of Mediation in others Forms of disputes resolution.
Unit-IV Lok-Adalat and Others Authorities (Lectures 10)
i. The Legal Services Authorities Act, 1987: Object, Scope and Definition, the NationalLegal
Services Authority, State Legal Services Authority, District Legal Services Authority and Taluk
Legal Services Committee.
ii. LokAdalat: Concept of LokAdalat, Organization, Constitution, Jurisdiction, Powers of
LokAdalat, Cognizance of cases by LokAdalat, Procedure and Award of LokAdalat
iii. Permanent LokAdalat: Definition of Public Utility Service, Cognizance of cases by
PermanentLokAdalat, Jurisdiction, Powers of Permanent LokAdalat, Cognizance of cases by
Permanent LokAdalat, Procedure and Award of Permanent LokAdalat
iv. Negotiation, Med-Arb, Medola, Summery Trial, Ombudsman, Plea Bargaining, Family Court,
Gram Nyayalaya.
 LECTURE PLAN

Lecture-1 Conciliation: Application and scope, Commencement of conciliation proceedings,

Lecture-2 Appointment of conciliators, Submission of statements to conciliator, Role of
conciliator
Lecture-3. Administrative assistance, Communication between conciliator and parties,
Disclosure of information, Cooperation of parties with conciliator, Settlement agreement,
Confidentiality

Lecture-4 Termination of conciliation proceedings, Costs, Deposits, Admissibility of evidence

in other proceedings, Difference between Arbitration and Conciliation

Lecture-5 Mediation: Historical development, Concept and Definition

Lecture-6 Types of Mediation
Lecture-7 Appointment, Procedure of Mediation, and Role of mediator.

Lecture-8 Advantages of Mediation and Difference between Mediation and Conciliation

Lecture-9 Mediation Rules and Its Applicability in respect of Supreme Court‘s Module on
Mediation, 2003
Lecture-10 Supreme Court (Mediation) Rules 2010

Lecture-11 Uttar Pradesh Civil Procedure Mediation Rule, 2009

Lecture-12 Applicability of Mediation in others Forms of disputes resolution

Lecture-13 The Legal Services Authorities Act, 1987

Lecture-14 LokAdalat: Concept of LokAdalat, Organization, Constitution, Jurisdiction, Powers
of LokAdalat, Cognizance of cases by LokAdalat, Procedure and Award of LokAdalat
Lecture-15Permanent LokAdalat: Definition of Public Utility Service, Cognizance of cases by
PermanentLokAdalat, Jurisdiction, Powers of Permanent LokAdalat, Cognizance of cases by
Permanent LokAdalat, Procedure and Award of Permanent LokAdala

Lecture-16 Negotiation, Med-Arb, Medola, Summery Trial, Ombudsman, Plea Bargaining,

Family Court, Gram Nyayalaya
PREVIOUS YEAR QUESTION
 UNIT -1

QUESTION 1 What is conciliation, and how does it differ from arbitration and mediation?
Explain its scope and application in dispute resolution.

ANSWER- Introduction

The term conciliation is not defined in the Arbitration and Conciliation Act. However, in simple
terms, conciliation is a confidential, voluntary and private dispute resolution process in which a
neutral person helps the parties to reach a negotiated settlement. This method provides the
disputing parties with a chance to take into consideration options facilitated by an objective third
party to effectively explore if a settlement is possible. Like arbitration, the Act covers both
domestic and international disputes with regard to conciliation. International conciliation is
confined only to disputes of “commercial” nature. The Act defines international commercial
conciliation as the conciliation proceedings relating to a dispute between two or more parties
where at least one of them is a foreign party.

The foreign party can be

(1) an individual who is foreign national,

(2) a company incorporated outside India, or

(3) the government of a foreign country.

Conciliation is a method by which an attempt is made to resolve disputes without resorting to

traditional form of litigation. It is a process in which independent person or persons are
appointed by the parties with mutual consent by agreement to bring about a settlement of their
dispute through consensus or by using of the similar techniques which are persuasive.

It is important to note that – The UNCITRAL Rules on Conciliation, 1980 acknowledged “the
value of conciliation as a method of amicably settling disputes arising in the context of
international commercial relations” and that adoption of uniform conciliation rules by “countries
with different legal, social and economic systems would significantly contribute to the
development of harmonious international economic relations.” As a result, the Indian legislators
took a note of the UNCITRAL notes and hence, they worked to formulate conciliation rules
under Part III of the Act.

The procedure laid down in Part III of the Act reflects the following broad principles:

(1) The conciliation proceedings is non-adversary in nature – meaning that there is no claimant
or plaintiff in conciliation proceedings,

(2) The proceedings are voluntary in nature – any party can begin and terminate the proceedings,

(3) The method contains a flexible procedure – the conciliator has the discretion to adopt any
procedural law to ensure speedy and inexpensive conduct of proceedings, and

(4) The decisions given by conciliator are recommendatory in nature – disputes are settled by
mutual agreement and not imposed upon them.

In the Arbitration and Conciliation Act, 1996 Sections 61-81 lays down the provisions with
respect to Conciliation. It has a detailed set of guidelines such as the commencement of the
proceeding with the selection of the conciliator to the principals of confidentiality and privacy to
be maintained and later the provisions of the termination of judicial proceedings. The office of
the conciliatory officer is specifically established under Section 12 of the Industrial Disputes Act,
1947. The powers and functions of the officer are also laid down in the said section.

Definition and Meaning of conciliation-

The simplest meaning of conciliation is the settlement of the disputes outside the court .It is a
process by which the discussion between the parties are kept going through the participation of a
conciliator. Conciliation is one of the non binding procedures where an impartial third party,
known as the conciliator, assists the parties to a dispute in reaching a mutually agreed settlement
of the dispute.

As per the Halsbury Laws of England, conciliation is a process of persuading parties to each an
agreement. Because of its non judicial character, conciliation is considered to be fundamentally
different from that of litigation. Generally Judges and Arbitrators decide the case in the form of a
judgment or an award which is binding on the parties while in the procedure of the conciliation
,the conciliator who is often a government official gives its report in the form of
recommendations which is made public.

History and Evolution-

The history and evolution of ADR is visible from 12th century in China , England and America.
And in the Indian perspective it has been seen that the practice of amicable resolution of the
disputes can be caught from the historic times , when in the villages disputes were resolved
between members of a particular relations or occupations or between members of the same
family was in practice in the ancient times. In the villages still the panchayat decides
approximately all the disputes between the people as in earlier times the disputes were resolved
by the elders.

The concept of Conciliation was introduced in the statute of Industrial Disputes Act, 1947. The
Conciliation is generally conducted by an officer appointed by Government under Industrial
Disputes Act, 1947. Industrial Disputes Act, 1947 provides provisions for the parties to settle
disputes through Negotiation, Mediation and Conciliation, for example Section 12 , Section 18 ,
etc.

Alternate Dispute Resolution plays a major role in the family disputes settlement. Section 5 of
the Family Court Act, 1984 provides provisions for the association of social welfare
organizations to hold Family Courts under control of government. Section 6 of the Act provide
for appointment of permanent counselors to enforce settlement decisions in the family matters.
Further Section 9 of the Act imposes an obligation on the court to make effort for the settlement
before taking evidence in the case .

In addition to all provisions referred above, Indian Contract Act, 1872 most importantly gives a
mention about Arbitration Agreement as an exception to Section 28 that renders an agreement
void if it restrains a legal proceeding. Alternate Dispute Resolution whether sorted for or not can
be easily inferred from presence or absence of the ‘Arbitration clause’.
Application and Scope-

Section 61 of the Arbitration and Conciliation Act of 1996 provides for the Application and
Scope of Conciliation. Section 61 points out that the process of conciliation extends, in the first
place, to disputes, whether contractual or not. But the disputes must arise out of the legal
relationship. It means that the dispute must be such as to give one party the right to sue and to the
other party the liability to be sued. The process of conciliation extends, in the second place, to all
proceedings relating to it. But Part III of the Act does not apply to such disputes as cannot be
submitted to conciliation by the virtue of any law for the time being in force.

Number and qualification of conciliators-Section 63 fixes the number of conciliators. There shall
be one conciliator. But the parties may by their agreement provide for two or three conciliators.
Where the number of conciliator is more than one ,they should as general rule act jointly.Section
61 (Arbitration and Conciliation Act, 1996) lays down that, application and scope of application
of conciliation-

1. This part shall apply to conciliation of disputes arising out of legal relationship, whether
contractual or not and to all proceedings.

2. This part shall not apply where by virtue of any law for the time being in force certain disputes
may not be submitted to conciliation.

Section 61 points out that the process of conciliation extends, in the first place, to disputes,
whether contractual or not. But the disputes must arise out of legal relationship. It means that the
dispute must be such as to give one party the right to sue and other party the liability to be sued.
The process of conciliation extends, in the second place, to all proceedings relating to it. But Part
3rd of the Act does not apply to such disputes as cannot be submitted to conciliation by virtue of
any law for the time being in force.

It is important to note that the dispute should arise within the legal relationship whether
contractual or not, and to all proceedings related thereto, for example, issues arising under
contracts, torts and breach of duty including negligence, consumer disputes, differences arisen in
partnership, etc.

But excludes all disputes which need not be taken up before a conciliator due to any other law
applicable for the time being in force. Industrial disputes, family disputes, including disputes
arising due to separation and divorce, social conflict, etc. may also be taken for conciliation.

Case laws relating to Conciliation-

HareshDayaram Thakur v. State of Maharashtra and Ors.- while dealing with the provisions of
Sections 73 and 74 of the Arbitration and Conciliation Act of 1996 in paragraph 19 of the
judgment as expressed thus the court held that-

“From the statutory provisions noted above the position is manifest that a 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 proceedings
comes to end only when the settlement agreement signed by the parties comes into existence. It
is such an agreement which has the status and effect of legal sanctity of an arbitral award under
Section 74”.
Conclusion-

The process of conciliation as an alternate dispute redressal mechanism is advantageous to the

parties in the sense that it is cost effective and expeditious, it is simple, fast and convenient then
the lengthy litigation procedure and it eliminates any scope of biasness and corruption. The
parties who wish to settle their disputes they can be provided great intensive by the process of
conciliation. In order to enable the conciliator to play his role effectively ,the parties should be
brought together face to face at a common place where they can interact face to face and with the
conciliator, separately or together without any distraction and with only a single aim to sincerely
arrive at the settlement of the dispute.

Conciliation is a boon and it is a better procedure to settle any dispute as in this process it is the
parties who by themselves only come to the settlement of the dispute and the role of the
conciliator is to bring parties together and to make a atmosphere where parties can themselves
resolve their disputes.

Conciliation tries to individualize the optimal solution and direct parties towards a satisfactory
common agreement. In conciliation, the conciliator plays a relatively direct role in the actual
resolution of a dispute and even advises the parties on certain solutions by making proposals for
settlement. Thus I would like to conclude with a saying: Do conciliate, therefore, whenever there
are differences ,and sooner it is done ,the better.
 QUESTION – 2 Explain the process of appointing a conciliator under the Arbitration and
Conciliation Act, 1996. Who is responsible for the appointment, and what qualifications are
necessary for a conciliator?

ANSWER- INTRODUCTION
Disputes arise in various contexts, and parties often seek ways to resolve them without resorting
to lengthy and costly litigation. However, finding a fair and impartial mediator who can assist in
reaching a mutually agreeable solution can be challenging. This is where the appointment of
conciliators becomes crucial.
The Arbitration and Conciliation Act provides a solution by outlining the framework for
appointing conciliators.
Conciliation is a voluntary and confidential method of alternative dispute resolution (ADR) in
which a neutral third party, known as a conciliator, assists disputing parties in resolving their
differences and reaching a mutually acceptable settlement.
In conciliation, the conciliator acts as a facilitator, helping the parties communicate effectively,
understand each other’s perspectives, and find common ground for resolving their dispute. The
conciliator is a neutral and impartial intermediary who does not impose decisions but guides the
parties towards a resolution through dialogue and negotiation.
Who is a Conciliator?
A conciliator is a neutral third party appointed or chosen to facilitate the conciliation process in
dispute resolution. The conciliator’s role is to assist the disputing parties in reaching a mutually
agreeable settlement through open communication, negotiation, and consensus-building.
A conciliator is typically someone with expertise and experience in dispute resolution,
negotiation, and conflict management.
Appointment of Conciliator under Arbitration and Conciliation Act
Under the provisions of the Arbitration and Conciliation Act, the number and qualifications of
conciliators are outlined in Sections 63 and 64:
Number of Conciliators (Section 63)
 By default, there shall be one conciliator in a conciliation proceeding.
 However, the parties involved in the dispute can agree on the appointment of two or three
conciliators if they wish.
 When multiple conciliators are appointed, they are generally expected to act jointly in
conducting the conciliation proceedings.
According to the provisions of the Arbitration and Conciliation Act, the appointment of a
conciliator in conciliation proceedings follows the following guidelines:
Appointment by Agreement
 In conciliation proceedings with one conciliator, the parties have the freedom to agree on the
name of a sole conciliator.
 In conciliation proceedings with two conciliators, each party has the right to appoint one
conciliator.
 In conciliation proceedings with three conciliators, each party has the right to appoint one
conciliator, and the parties may collectively agree on the name of the third conciliator, who will
act as the presiding conciliator.
Enlisting Assistance of an Institution or Person
Parties also have the option to seek the assistance of a suitable institution or person in connection
with the appointment of conciliators. This can be done through the following means:
 A party may request such an institution or person to recommend the names of suitable
individuals to act as a conciliator.
 The parties may agree that the appointment of one or more conciliators be made directly by such
an institution or person.
In making recommendations or appointments, the institution or person involved must consider
factors that ensure the appointment of an independent and impartial conciliator. Additionally,
when appointing a sole or third conciliator, they should consider the desirability of appointing a
conciliator of a nationality different from that of the parties.
These provisions ensure that the appointment of a conciliator is conducted in a manner that
upholds the principles of neutrality, independence, and impartiality, thereby promoting a fair and
effective conciliation process.
Role of Conciliators
The role of Conciliators is important in facilitating communication, promoting understanding,
and guiding the parties towards a mutually agreeable settlement. They must be neutral, and
impartial, and possess the necessary skills to conduct the conciliation process effectively. Their
primary objective is to assist the parties in reaching a voluntary resolution through dialogue and
negotiation.

Responsibility for the Appointment of a Conciliator

Under the Arbitration and Conciliation Act, 1996, the responsibility for the appointment of a
conciliator primarily lies with the parties to the dispute. Here’s how the appointment process
works:

1. Agreement Between the Parties:

o The parties involved in the dispute are encouraged to mutually agree on the
appointment of a conciliator. This can happen either at the time the conciliation
process is initiated or during the conciliation proceedings themselves.
o The parties may decide on the number of conciliators (either a single conciliator
or a panel of conciliators). In the case of a panel, the parties may agree on the
number of members.
2. Appointment by a Third Party:
o If the parties are unable to agree on the appointment of a conciliator, they may
appoint a third party to do so. This third party can be an institution or an
organization, which could either be specified in advance or selected later.
o For example, parties may decide to involve a body like the Indian Council of
Arbitration (ICA) or the Indian Institute of Arbitration and Mediation
(IIAM) for the appointment of a conciliator.
3. Court Intervention:
o If the parties cannot agree on the appointment, either party can approach the court
for the appointment of a conciliator. As per Section 64(2) of the Act, the court
will then appoint the conciliator, considering the preferences of the parties, as
long as the conciliator meets the necessary qualifications of impartiality and
competence.
Qualifications Necessary for a Conciliator

The Arbitration and Conciliation Act, 1996 does not lay down specific educational
qualifications for conciliators but does emphasize certain qualities that a conciliator must
possess. The key qualifications are as follows:

1. Impartiality and Independence:

o The conciliator must be neutral, impartial, and independent. This means they
should not have any personal or financial interest in the dispute or the outcome of
the proceedings. They should not have any prior relationship with either party that
could affect their neutrality.
o A conciliator’s independence and impartiality are essential for maintaining trust in
the conciliation process.
2. Expertise in the Subject Matter:
o While the Act does not prescribe specific academic qualifications, the conciliator
should possess expertise or knowledge relevant to the dispute. For example:
 In a commercial dispute, the conciliator should have knowledge of
business practices and laws.
 In technical disputes, the conciliator should have experience in the
relevant technical field (e.g., engineering, medicine, etc.).
o This ensures that the conciliator can understand the issues at hand and provide
relevant suggestions for resolving the dispute.
3. Ability to Facilitate Communication:
o The conciliator should possess skills in negotiation and conflict resolution. This
includes the ability to communicate effectively, mediate between the parties, and
suggest practical solutions that both parties can agree on.
o The conciliator should also be capable of managing difficult or hostile situations
and helping the parties focus on finding a mutually agreeable solution.
4. No Conflict of Interest:
 o A conciliator must not have any financial, professional, or personal stake in the
outcome of the conciliation process. If a conciliator has any previous dealings
with one of the parties or stands to benefit from a particular outcome, they could
be disqualified.
o The Arbitration and Conciliation Act, 1996 also provides a mechanism for
challenging a conciliator if they are deemed to have a conflict of interest.
5. Training or Experience in Conciliation:
o Although not explicitly required by the Act, a conciliator should ideally have
some experience or training in the techniques and methodologies of conciliation
and dispute resolution. Many conciliators are trained in mediation or negotiation
techniques to ensure that they can effectively guide the parties to a resolution.
6. Integrity and Professionalism:
o A conciliator should have high moral character, professional integrity, and the
ability to maintain confidentiality throughout the process. Maintaining
confidentiality is a cornerstone of the conciliation process, and the conciliator
should ensure that sensitive information shared by the parties is not disclosed
without consent

Conclusion
Appointing conciliators in conciliation is a crucial aspect of alternative dispute resolution. The
Arbitration and Conciliation Act provides guidelines in Sections 63 and 64 regarding the number
and qualifications of conciliators.
Parties have the flexibility to agree on the appointment of one, two, or three conciliators, with the
expectation that they will act jointly in most cases. The Act also allows parties to seek the
assistance of a suitable institution or person in the appointment process.
QUESTION- 3 Discuss the process and significance of submitting statements to the
conciliator under the Arbitration and Conciliation Act, 1996. What kind of information
should these statements contain?

ANSWER- The submission of statements is a vital step in the conciliation process under the
Arbitration and Conciliation Act, 1996. It allows the parties involved in a dispute to formally
present their version of the dispute and provide the conciliator with the necessary information to
understand the issues and facilitate a resolution.

Process of Submitting Statements to the Conciliator:

1. Initial Submission by the Parties:

o Once the conciliation proceedings commence, the parties involved are required to
submit statements to the conciliator.
o These statements are typically submitted in writing and can be done either jointly
or separately. However, if the parties submit them separately, the conciliator must
ensure confidentiality between the parties.
2. Content of the Statements:
o Each party's statement should contain detailed information about their position in
the dispute. The statements serve as the foundation upon which the conciliator
will base their efforts to facilitate a resolution.
o These statements must be submitted in a manner that outlines the facts, the legal
position, and the relief sought by each party. The conciliator uses these statements
to identify the key issues and the areas of disagreement.
3. Exchange of Statements:
o After the statements are submitted, the conciliator may facilitate the exchange of
statements between the parties. This allows both sides to understand the other
party's perspective on the dispute.
o The conciliator may also encourage the parties to clarify or modify their
statements if necessary. The goal is to ensure that the conciliator has a complete
and accurate understanding of the dispute.
 4. Role of Conciliator After Receiving Statements:
o Upon receiving the statements, the conciliator may choose to meet with the
parties separately or jointly. These meetings provide an opportunity for the
conciliator to clarify issues and facilitate discussions aimed at reaching a mutually
acceptable solution.
o The conciliator may also propose settlement options based on the information
provided in the statements, which the parties may accept, reject, or counter.

Significance of Submitting Statements to the Conciliator:

1. Clear Presentation of Issues:

o Submitting statements ensures that both parties clearly present their case to the
conciliator. It helps in identifying the key issues that need to be addressed in the
conciliation process.
o The statements allow the conciliator to have an overview of the dispute, making it
easier for them to facilitate communication and suggest potential solutions.
2. Framework for Negotiation:
o The statements serve as a starting point for negotiation between the parties. By
outlining their position and the points of contention, each party provides the
conciliator with a framework within which they can work towards a resolution.
o The conciliator can use the information to propose creative solutions or
compromises that might help the parties bridge their differences.
3. Confidentiality:
o The statements are often submitted in confidence, meaning the information
contained in them is not shared with the opposing party unless agreed to. This
allows each party to be more open and transparent in presenting their side of the
dispute, knowing that sensitive information will be protected.
o The confidentiality of the conciliation process is crucial because it helps maintain
trust between the parties and the conciliator.
4. Identifying Common Ground:
o The statements submitted by both parties provide the conciliator with the
necessary tools to identify common ground between them. Even though both
 parties may have conflicting positions, the conciliator can use the information to
find potential areas where agreement is possible, and then move toward
reconciliation.
5. Facilitating the Resolution:
o The submission of statements allows the conciliator to better understand the
underlying issues behind the dispute. This is critical for the conciliator in
identifying the interests of both parties and proposing a resolution that satisfies
those interests.
o The conciliator may also use the statements to suggest solutions and help the
parties overcome any misunderstandings or miscommunications that may exist.
6. Establishing the Basis for Future Proceedings:
o The statements provide a record of the positions taken by both parties at the
beginning of the conciliation. This record can help track the progress of the
conciliation process and determine if further efforts are needed to resolve the
dispute.
o Additionally, the statements may serve as the basis for any future legal actions,
should the conciliation process fail, as they outline the claims and defences put
forward by each party.

Information That Should Be Included in the Statements:

The statements submitted to the conciliator should contain specific information, such as:

1. Facts of the Dispute:

o A detailed description of the facts and events that led to the dispute. This includes
key incidents, agreements, or actions that contributed to the conflict.
2. Legal Basis:
o A clear articulation of the legal principles or claims upon which the party is
relying. This includes referencing applicable laws, contracts, or agreements that
are relevant to the dispute.
3. Relief Sought:
 o A clear statement of the relief or remedy that the party is seeking through
conciliation. This may include specific demands, such as compensation, specific
performance of a contract, or any other resolution.
4. Evidence:
o Any supporting documents or evidence that back up the party's position. This
could include contracts, emails, letters, financial records, or witness statements.
5. Points of Disagreement:
o A concise outline of the points of disagreement between the parties. This helps the
conciliator understand where the parties are diverging in their views and where
compromise or negotiation may be needed.
6. Suggestions for Resolution:
o Some parties may include suggestions or proposals for how they believe the
dispute should be resolved. This can help the conciliator in proposing potential
solutions to the other party.

Conclusion:

The submission of statements is a foundational step in the conciliation process under the
Arbitration and Conciliation Act, 1996. These statements provide the conciliator with the
necessary information to understand the dispute and facilitate the resolution. The statements
should be clear, comprehensive, and include all relevant facts, legal claims, evidence, and relief
sought. Their significance lies in ensuring transparency, maintaining confidentiality, providing a
framework for negotiation, and enabling the conciliator to identify potential solutions and
facilitate a mutually agreeable resolution.
QUESTION- 4 "Discuss how the conciliation process under the Arbitration and
Conciliation Act, 1996 ensures administrative assistance, effective communication,
confidentiality, and cooperation between the conciliator and the parties. How do these
elements contribute to the success of the process?

ANSWER- The Arbitration and Conciliation Act, 1996 (referred to as the Act) is a
comprehensive legislation that provides a framework for alternative dispute resolution (ADR) in
India. The conciliation process under this Act is designed to provide a peaceful and voluntary
resolution of disputes through mediation, with the assistance of a neutral third party called a
conciliator. In this context, administrative assistance, effective communication, confidentiality,
and cooperation between the conciliator and the parties are vital elements that ensure the success
of the conciliation process. Let's discuss each of these elements in detail and how they contribute
to the success of conciliation under the Act.

1. Administrative Assistance

Administrative assistance refers to the support provided to ensure the smooth running of the
conciliation process. Under the Arbitration and Conciliation Act, 1996, the process is typically
managed by the conciliator, who may require the assistance of a suitable institution or
administration to facilitate logistical aspects, such as scheduling meetings, managing
documentation, and keeping records.

How Administrative Assistance Contributes:

 Efficiency in Process: Administrative assistance helps in organizing meetings and

managing the procedural aspects of the conciliation. It ensures that there are no delays
due to logistical issues and that the process proceeds in a timely and structured manner.
 Support for the Conciliator: The conciliator can focus on the substance of the dispute
rather than dealing with administrative tasks. This allows them to dedicate their efforts to
facilitating negotiations and understanding the underlying issues.
 Neutrality and Impartiality: Administrative support is often provided by institutions
that are independent of the parties, thus reinforcing the neutrality of the conciliation
process. This gives the parties confidence that the process is not influenced by any bias.
2. Effective Communication

Effective communication between the conciliator and the parties is one of the core pillars of the
conciliation process. The Arbitration and Conciliation Act, 1996 emphasizes the importance of
communication for resolving disputes. The conciliator plays a key role in facilitating open and
candid discussions between the parties, helping them express their concerns and interests.

How Effective Communication Contributes:

 Clarification of Issues: Effective communication helps the conciliator understand the

concerns, needs, and expectations of each party. This is essential for identifying areas of
compromise and mutual interest.
 Building Trust: The conciliator acts as an intermediary, encouraging dialogue and
ensuring that both sides feel heard. This communication helps build trust between the
parties, which is critical for any successful resolution.
 Conflict Reduction: Often in disputes, communication can break down due to mistrust
or misunderstandings. Through active listening, reframing, and clarifying, the conciliator
can help reduce misunderstandings and alleviate tensions, making it easier for parties to
reach an agreement.
 Customized Solutions: Open and honest communication allows the conciliator to
identify creative solutions that are tailored to the specific interests of both parties, rather
than relying on one-size-fits-all legal remedies.

3. Confidentiality

One of the most significant advantages of conciliation under the Arbitration and Conciliation
Act, 1996, is the confidentiality of the proceedings. The Act ensures that any information shared
during the conciliation process remains confidential, unless otherwise agreed upon by the parties
or required by law.
How Confidentiality Contributes:

 Encourages Openness: Confidentiality fosters an environment in which the parties can

freely share sensitive information without fear of it being used against them in the future.
This openness is critical to resolving disputes effectively.
 Protects Business Interests: Especially in commercial disputes, parties may have
concerns about disclosing business strategies, financial details, or other proprietary
information. The assurance of confidentiality encourages them to engage more openly in
the process.
 Enhances Settlement Potential: The knowledge that the process is confidential can
make the parties more willing to explore settlement options. Without the risk of public
exposure or legal ramifications, parties may be more open to compromise.
 Reduces the Risk of Future Litigation: Since statements made during conciliation
cannot be used in court, it mitigates the fear of those statements being used later in
litigation. This protection encourages a more candid exchange of ideas during the
conciliation process.

4. Cooperation Between the Conciliator and the Parties

The conciliation process is inherently cooperative, with the conciliator acting as a neutral
facilitator rather than an adjudicator. Cooperation between the conciliator and the parties is
essential for the successful outcome of the process.

How Cooperation Contributes:

 Joint Problem Solving: The conciliator helps the parties explore solutions that align with
their interests. This requires a cooperative approach where all parties are willing to
engage in finding common ground. The conciliator, through their skill and impartiality,
encourages cooperation by emphasizing mutual benefit rather than adversarial positions.
 Fostering a Constructive Atmosphere: A cooperative attitude helps in creating a
positive, solution-oriented environment where both sides focus on resolving the dispute
rather than on winning or losing.
  Flexibility in Approach: The conciliator can suggest various methods for addressing the
dispute, but success depends on the parties' willingness to cooperate and consider non-
litigation solutions. The flexibility inherent in conciliation allows for creative solutions
that might not be available in formal court proceedings.
 Voluntary Participation: Since conciliation is a voluntary process, the success of the
process relies heavily on the parties’ willingness to cooperate. If both parties are
genuinely interested in resolving the dispute amicably, the chances of success increase
significantly.

How These Elements Contribute to the Success of the Conciliation Process

The combination of administrative assistance, effective communication, confidentiality, and

cooperation creates a conducive environment for the successful resolution of disputes. Here’s
how they work together:

 Structured yet Flexible Process: Administrative assistance provides structure and

organization, while the cooperative nature of conciliation allows flexibility in finding
tailored solutions to disputes.
 Trust and Confidence: Confidentiality ensures that sensitive information is protected,
fostering trust between the parties. This trust is essential for the conciliator to guide the
parties towards a resolution that satisfies both sides.
 Efficient Resolution: Effective communication ensures that all issues are discussed and
understood. Administrative assistance ensures that the process is efficient, while
cooperation between the parties makes it possible to reach an agreement without
protracted negotiations or litigation.
 Minimized Litigation Risk: Confidentiality and cooperation reduce the chances of the
dispute escalating into litigation. The conciliator’s role in encouraging voluntary
agreement helps avoid the need for court involvement, which is often costly and time-
consuming.
Conclusion

The success of the conciliation process under the Arbitration and Conciliation Act, 1996 largely
depends on the interplay of administrative assistance, effective communication, confidentiality,
and cooperation. These elements work together to create a conducive environment for resolving
disputes in a manner that is efficient, fair, and satisfactory to all parties involved. The
conciliator’s neutral facilitation, combined with the parties’ willingness to cooperate and
communicate effectively, ensures that the process is successful and that disputes are resolved
amicably, without the need for litigation.
QUESTION -5 "Explain the difference between arbitration and conciliation under the
Arbitration and Conciliation Act, 1996. How do these mechanisms differ in terms of the
termination of proceedings, costs, and admissibility of evidence?"

ANSWER- Difference Between Arbitration and Conciliation Under the Arbitration and
Conciliation Act, 1996

The Arbitration and Conciliation Act, 1996 provides two important methods of resolving
disputes: Arbitration and Conciliation. While both methods fall under the broader category of
alternative dispute resolution (ADR), they are quite different in terms of procedure, nature, and
outcomes. To understand these differences clearly, let's break it down into key areas:
termination of proceedings, costs, and admissibility of evidence.

1. Nature of the Process:

 Arbitration: In arbitration, a neutral third party, known as an arbitrator, hears both

sides of the dispute and then makes a binding decision (called an award). Arbitration is
more formal and resembles a court trial, where the arbitrator acts like a judge, but outside
the court system.
 Conciliation: In conciliation, a neutral third party, called the conciliator, helps the
parties communicate and negotiate to reach a mutual settlement. Unlike arbitration, the
conciliator does not make a binding decision. Instead, the conciliator facilitates
discussions to help both parties reach an agreement on their own.

2. Termination of Proceedings:

 Arbitration: The arbitration proceedings terminate when the arbitrator makes a final
award, or if the parties reach a settlement before the award is given. The process can also
end if the parties agree to stop the arbitration or if the tribunal decides the dispute is not
worth pursuing.
o Termination Point: The arbitration ends when the arbitrator issues the final
award or if both parties agree to end the process.
 Conciliation: The conciliation proceedings can end at any time:
 o By Agreement: If the parties agree to a settlement, the proceedings can end when
the settlement is formalized.
o By One Party with Notice: A party may choose to end the conciliation process
by informing the other party and the conciliator.
o By Conciliator’s Decision: If the conciliator believes that further efforts will not
lead to a resolution, they can inform the parties and terminate the process.
o Termination Flexibility: Since conciliation is a voluntary and informal process,
it can end at any time if the parties are no longer willing to continue or if an
agreement is reached.

3. Costs:

 Arbitration: Arbitration tends to be more costly because it involves formal procedures.

The costs include the arbitrator's fees, administrative fees (if any institution is involved),
and legal costs (if lawyers are used). Since arbitration is more structured, it often takes
longer and requires more resources.
o Arbitration Costs: The parties pay the costs of the arbitrator, venue, and any
administrative body involved. The losing party might also be ordered to pay the
costs of the winning party.
 Conciliation: Conciliation is generally cheaper than arbitration. Since it is less formal,
there are fewer costs involved. The conciliator’s fees are typically lower, and there are no
formal hearings or lengthy proceedings. The parties may still incur some costs, such as
paying the conciliator, but it is usually much less than the cost of arbitration.
o Conciliation Costs: The parties pay the conciliator’s fees, but there are no court
fees or other substantial costs unless the process is prolonged.

4. Admissibility of Evidence:

 Arbitration: In arbitration, the admissibility of evidence is treated similarly to a court

trial. The arbitrator can ask for documents, witness statements, and other evidence to
make a fair decision. The rules of evidence are more formal in arbitration, though they
are still more relaxed compared to regular court proceedings.
 o Formal Process: The parties present their case by submitting evidence and
arguments. The arbitrator can call witnesses, review documents, and make
decisions based on the evidence provided.
 Conciliation: In conciliation, the process is informal, and evidence is not presented in
the same structured way. The conciliator may request information or documents from the
parties, but the goal is not to gather evidence to make a decision. Instead, the conciliator
helps the parties negotiate and reach a settlement, which may involve understanding the
interests of each side rather than looking at hard evidence.
o Informal Process: Evidence and documents are not strictly used to argue the
case. The focus is more on resolving the dispute through negotiation, so the use of
evidence is minimal and may only be used to clarify certain points during
discussions.

Summary of Differences in Key Areas

Aspect Arbitration Conciliation

Nature of Process

Formal, binding decision by an Informal, non-binding process to help reach

arbitrator a settlement

Termination of
Proceedings Ends at any time by mutual agreement, or if
Ends with an arbitrator's award
the conciliator decides further efforts are
or agreement by both parties
futile

Costs
Higher due to formal Lower as it’s less formal and doesn’t
procedures and fees involve heavy legal costs

Admissibility of Evidence is formally presented Evidence is informally shared to aid

Aspect Arbitration Conciliation
Evidence to make a decision negotiation, not to decide the case

Conclusion:

Both arbitration and conciliation provide valuable alternatives to court proceedings, but they
differ in their approach and procedure:

 Arbitration is more formal, with a binding decision and a structured process similar to a
trial. It requires more time, costs, and the presentation of evidence.
 Conciliation is informal, voluntary, and focuses on helping the parties reach a mutually
agreed settlement. It is cheaper, faster, and less focused on evidence.

Choosing between these two depends on the nature of the dispute, the relationship between the
parties, and how formal or informal the parties want the resolution process to be.