Conciliation
BY
DR. CHANDRALEKHA V.
Meaning
► Conciliation is an alternative dispute
resolution (ADR) process whereby the parties to a
dispute use a conciliator, who meets with the parties
both separately and together in an attempt to
resolve their differences.
► conciliation is a voluntary, flexible, confidential, and
interest based process. The parties seek to reach an
amicable dispute settlement with the assistance of
the conciliator, who acts as a neutral third party
Contd…
► Part III of the Arbitration and Conciliation Act,
1996 deals with conciliation
► Conciliation differs from arbitration in that the
conciliation process, -
► no legal standing, and
► The conciliator usually has no authority to seek
evidence or call witnesses
Contd…
► Prior Agreement is not required for conciliation
► Only existing Disputes can be referred to the
conciliation.
► writes no decision, and makes no award
► A conciliator do not have the power to enforce his
decision
Salient features of the
Conciliation
► Flexible in nature: The parties in conflict are free and have the right to
choose the procedure, time, language, and place as per their
requirement.
► Confidential: Conciliation is well-known for its confidentiality. As the
parties agree and want the confidential, where to keep the business
secrets a secret.
► Time and Cost-effective: because of the flexible nature conciliation
ensures a time and cost-effective manner. As parties can decide the
time period and manner for the settlement.
Contd…
► Conciliation ensures the expertise of the decision
maker.
The parties are free to select their conciliator. A
conciliator does not have to have a specific
professional background. The parties may base their
selection on criteria such as; experience,
professional and / or personal expertise, availability,
language and cultural skills. A conciliator should be
impartial and independent.
Kinds of Conciliation
► Voluntary Conciliation- In this method parties can
voluntarily participate in the process of conciliation
for resolving their dispute.
► Compulsory Conciliation- In this method, if the
parties do not want to meet the other party to
resolve the dispute then the process is said to be
compulsory.
► Under the compulsion of law
► This method is commonly used in labour cases.
Facilitative v/s Evaluative
► In Facilitative conciliation the conciliator does not
recommend solutions but only facilitates mutually
agreeable settlements.
► He shuns opinions and judgment but merely assists
the parties to clarify their communication, interest
and priorities.
► Interest- based negotiation
Evaluative
► The conciliator recommends resolutions or offers
persuasive opinions of key matters
► Expresses his opinion on the merits of the issue in
dispute in order to move the parties to settlement.
► Right- based approach
Court-Annexed Conciliation
► Court encourage the litigants in civil matter for
conciliation
► It is ordered by or arranged through court and
undertaken by court welfare officer or court
approved third party.
► Pre-trial
► In-trial
► Post trial
Process of conciliation
► Part III Secs 61 to 81 deals with conciliation process
► Sec 62. Commencement of conciliation
proceedings
► Party initiating conciliation must give
written invitation to other party and if it
is accepted conciliation begins
► If rejected or if no reply within 30 days,
there is no conciliation
► 63. Number of conciliators
► One/Two/Three
► All conciliator must act jointly
► 64. Appointment of conciliators
► Parties may agree for sole conciliator or can appoint
one conciliator each.
► If required third conciliator by the parties.
► Parties may enlist the assistance of a suitable institution
in this regard.
Stages of conciliation
► Sec 65. Submission of statements to
conciliator
► Submission of Written statement of
dispute and point at issue by the parties
upon the request of Conciliator/s.
► Each party must send copy to other
party too
► Conciliator may request for further
written statement or any
document/evidence.
► Assistance by the conciliator in
parties negotiation
► Settlement proposal by the
conciliator
► Supply of material and evidence
and attendance of meeting by
the parties
► Suggestions by parties for
settlement of dispute
Contd..
► Formulation and submission of
terms of possible settlement
► Reformulation
► Drawing up of settlement
agreement.
► Signing of Settlement
Agreement by the parties
Principles of procedure of
conciliation
► Independence and impartiality
► Fairness and justice
► Confidentiality
► Disclosure of information
► Cooperation of parties with conciliator
► Principles of natural justice
► Place of meeting
► Admissibility of evidence in other proceedings
Duties of conciliator
► Duty…
► To be impartial
► To be independent
► To establish relationship
► To give serious approach
► To collect information
► To conduct the joint meetings informally
► Not to criticize
► Not to strengthen a party’s stand
► Duty….
► To explore all the aspects of issues in dispute
► To encourage parties to offer solution
► To advise parties to go for other ADR process if
conciliation fails.
Settlement Agreement
► Assistance by conciliator
► Suggestions by parties
► Formulation and reformulation of terms
► Drawing and signing of settlement
agreement
► Binding nature of settlement agreement
► Enforcement of settlement agreement
Termination of Conciliation
proceedings
► Termination on signing of settlement agreement
► Termination on declaring so by the conciliator
► Termination on declaring so by the parties
► Termination on declaring so by the conciliator upon
non-payment of deposits by the parties
► Cost of conciliation
Advantage of Conciliation
► Primary method of dispute settlement
► Resolution of family disputes
► Alternative to arbitration and litigation
► Freedom of the parties to withdraw or terminate
► Resolution of dispute and conflict
► Confidentiality
► Speed and economy
► Flexible
► Failure also helpful sometimes
Disadvantages
► Conciliator is not a legally qualified person for
resolving disputes.
► Decision is not binding upon the parties.
► As the procedure of conciliation is informal and
simple there is high possibility of delivering injustice.
► Miscommunication of information: The process of
sending and receiving information sometimes leads
to mixed and incorrect information.
Conciliation under ID Act 1947
► Tripartite approach to labour
disputes
► ILO
► Two types
► Conciliation officer –Sec 4
► Board of conciliation –Sec 5
Conciliation officer
► Section 4 of Industrial Disputes Act 1947 empowers
the appropriate government to appoint such
number of persons as may be deemed necessary
by notification in the official gazette as conciliation
officers, for discharging the responsibility of
mediating in and promoting the settlement of
industrial disputes
Mandatory or discretionary
► In case of public utility services where a notice
under section 22 of the I D Act, 1947 has been
received, the conciliation officer must necessarily
hold immediate conciliation proceedings for prompt
settlement of the disputes.
► It is at the discretion of CO in respect of non public
utility services.
Functions
► Section 12 of I.D. Act 1947 provides duties of
conciliation officers.
► A conciliation officer is required to investigate
without delay the industrial disputes and make
efforts to settlement thereof
► He may do all such things as he deems fit for the
purpose of bringing parties to come to a fair and
amicable settlement of the disputes
Procedure
► Conciliation proceedings in public utility services are
deemed to have commenced on the date when
the conciliation officer receives the notice of strike
or lock-out u/s 22 of I.D. Act 1947 and in such cases
he has to act with great speed in order to complete
the proceedings within 14 days time.
► In case of non public utility services, the conciliation
officer has to give formal intimation in writing to the
parties declaring his intention to commence
conciliation proceedings with effect from such date
as he may specify.
► A conciliation officer has no authority or power to
force the parties to agree to his suggestions. He
merely offers his services through his good offices to
find an amicable solution and will meet the needs of
the two parties. He may suggest answer to the
problem.
Duties of conciliation officers Sec
12
► To commence the proceedings immediately
► To investigate the dispute and all matters affecting
the merits and the right settlement
► send a settlement report or failure report to the
appropriate Government
► The report shall be submitted within fourteen days of
the commencement of the conciliation
proceedings
Contd…
► Conciliation officer is deemed to be public servant
► The duties are not judicial but purely administrative
► Fix the date and place and sends the notice of the
same.
End of conciliation
► The conciliation proceedings are concluded in the
following manner.
► 1. Where conciliation ended in settlement - the date
on which settlement is signed by the parties to the
disputes or
2. Where conciliation ended in failure, the date on
which the failure report of conciliation officer is
received by the appropriate Govt.
3. When a reference is made to a Labour Court /
Industrial Tribunal during the pendency of
conciliation proceedings.
Problems in conciliation
► Problem of Integrating in to the dispute situation
► Problem of ascertaining the Real Issues of the
dispute
► Temptation of deciding for the parties
Board of conciliation under ID
Act
► Since 1929
► Statutory authority under I D Act
► Sec 5
► Appropriate government can constitute whenever
necessary
► A Board shall consist of a Chairman and two or four
other members, as the appropriate government
thinks fit.
Contd..
► The Chairman shall be an independent person and
the other members shall be persons appointed in
equal numbers to represent the parties to the
dispute and any person appointed to represent a
party shall be appointed on the recommendation of
that party
► Reference of dispute to Board of Conciliation by
appropriate government under Sec 10
Powers and Procedure
► Sec 11
► Powers of Civil Court
► Members deemed as public servant
Duties of BoC
► Sec 13
► It shall be the duty of the Board to endeavour to
bring about a settlement of the same and for this
purpose the Board shall, investigate the dispute and
all matters affecting the merits and the right
settlement thereof.
Contd..
► Send a settlement report or failure report to the
appropriate Government
► The report shall be submitted within two months of
the date on which the dispute was referred to it or
within such shorter period as may be fixed by the
appropriate Government
Conciliation under Family Courts
Act
► The main aim of the Family Courts Act, 1984 was to
provide quick and less expensive relief to the parties
in a less formal way with least technicalities.
► Sec 6. Appointment of Counsellors, officers and
other employees of Family Courts
► Section 9 of the said Act makes it a duty of the
Court to make efforts for a settlement
Contd…
► The said Act was to provide not only legal remedy
for settlement of family disputes but ensure that
estranged families avail of the services of
professional and trained mediators who may
provide counseling and easier settlement of disputes
Conciliation under H M Act,
1955
► Reconciliation is mandatory under HMA and SMA
► Sec 23 (2) of HM 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
► It shall not apply to any proceeding wherein relief is
sought on the following grounds
► conversion to another religion, Sec 13(1) (ii)
► renunciation of the world, Sec 13(1) (iii)
► mental disorder, Sec 13(1) (iv)
► venereal diseases and leprosy Sec 13(1) (v)
► Presumed death, Sec 13(1) (vi)
Contd…
► Sec 23(3), 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.
Mohinder Pal Kaur V/s. Gurmeet
Singh
► Parties filed the divorce petition within 6 months of
marriage.
► Efforts have been made to bring down the parties to
settlement using reconciliation, but resulted in no
success.
► The law says that before passing a decree of divorce,
atleast 6 months should have elapsed from the date of
filing of the case.
► But in this case, it was stated that a decree for divorce
can be pronounced if the petition has been pending for
more than 6 months and efforts of reconciliation has
been made between the parties, but was to no success.
Bini vs Sundaran
► (AIR 2008 Ker 84, 2008 (1) KLJ 162)
► Interesting question came before the
court that, whether conciliation is
mandatory after the introduction of
the Family Courts Act in a petition
under Section 13 of the Hindu Marriage
Act even on the excepted ground of
conversion to another religion?
Contd…
► In this case Husband seeking a decree
of divorce on the ground that the
appellant-wife had ceased to be
Hindu by conversion to another religion
► The Family Court has not made any
efforts for conciliation. On the mere
admission of conversion, a decree has
been granted, without making any
endeavour for reconciliation and
settlement.
Contd…
► Kerala HC held that, the decision is
against the spirit and mandate of the
provisions under the Family Courts Act,
1984 and set aside the impugned order
and remitted the matter to the Family
court to proceed afresh in the matter
in accordance with law
Role of Conciliator
► As a facilitator
► Help each party to understand the other party
► Prioritizing Issues
► Review relevant documents and information
► Maintain a neutral position
► Practice confidentiality regarding the parties, their
personal information and details regarding the dispute
Contd..
► As a discussion Leader
• Friendly manner identify the
problem
► As a Safety Valve (propose
alternative
target depending upon the mood of
parties)
► As a communication Link
► Hold meetings with each individual party
Contd…
► As an Inventor
► Invaluable source of new information
► As an Adviser
► Cannot act as an Arbitrator or representative of one
party
► As a promoter of relationship
► Can propose alternative settlement and develop good
relation
Arbitration and Conciliation Act
1996
► 67. Role of conciliator
► independent and impartial
► guided by principles of objectivity, fairness and justice
► make proposals for a settlement of the dispute
► 68. Administrative assistance – by institution
► 69. Communication between conciliator and parties
Contd..
► 70. Disclosure of information.
► 71. Co-operation of parties with conciliator
► 73. Settlement agreement
► 75. Confidentiality
► 76. Termination of conciliation proceedings
► 78. Costs
► 79. Deposits.
► 80. Role of conciliator in other proceedings
Thank You
