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UNDERSTANDING CONCILIATION AS AN ALTERNATIVE DISPUTE REDRASSAL MECHANISM
CONCILIATION : Conciliation is an Alternative Dispute Redrassal (ADR) mechanism where a neutral adjudicator is appointed with the consent of the parties and helping them to reach a mutually agreeable settlement. Conciliation is a persuasive process, where the parties themselves arrive at an amicable settlement. It is a process of settling disputes outside the courts in a way that no party feels aggrieved with the final decision rendered. The settlement is reached on the basis of formal negotiations based on an objective assessment of the positions of the parties. According to section 61 of the Arbitration and Conciliation Act, 1996, which deals with the application and scope of conciliation, conciliation shall extend to all contractual and non-contractual proceedings that are incidentally related to such proceedings. The nature of the disputes shall be such that they have arisen out of legal relationship between the parties, which means a dispute where one party can sue the other party for breach of obligations imposed on the party or for not abiding by the legal framework and the other party can be sued. However, the second part also states that the section does not apply to such a dispute that cannot be submitted to conciliation by virtue of any law for the time being in force.
PRINCIPLE CHARACTERISTICS OF CONCILIATION :
1. Under section 67(1) of the Act,
- Independence of the proceedings are ensured and the process is kept free from the interference of the courts.
- The conciliator shall be impartial and free from biases and prejudices for or against any party.
2. Under section 67(2) of the Act,
- Objectivity, fairness and justice - these pronciples are to be upheld during the proceedings of the case as well as while striving to reach a settlement between the parties.
- While trying to reach a settlement the rights and duties of the parties are to be kept in mind and all the nitty-gritties of the case are to be considered including the surrounding circumstances and the previous conduct of the parties.
3. Under section 67(3) of the Act, the conciliator may conduct the proceedings of the case in a way as he deems appropriate. However, the wishes and the requests of the parties have to be taken into account while deciding on such appropriateness. This section, in a nutshell, talks about the active - participation of the conciliator.
4. Under section 70 of the Act, confidentiality of the proceedings are ensured. The information that has been divulged by the partties on the condition of it being kept private, shall be kept secure by the conciliator in all circumstances and such information shall be kept confidential, under all circumstances and such information shall not be passed on to the other party or any other third party, by the conciliator. However, the conciliator can can pass on the factual information concerning the dispute to the other party to allow them the opportunity to express their stand on it or to present a relevant explanation for the same.
5. Under section 70 of th Act, the conciliation proceedings are based on a cooperative approach and not a compulsive approach, like litigation, where laws are strictly adhered to while delivering a judgement. In conciliation, the parties are expected to submit to the requests of the conciliator whether it is while providing written materials or evidences or even while attending meetings.
- What is conciliaton ?
- What are the principal characteristics of conciliation ?
- Relevant sections of the Arbitration and Conciliation Act,1996
