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ROLE OF THE CONCILIATOR IN A CONCILIATION PROCEEDING
A conciliator in a conciliation proceeding is a neutral adjudicator whose role is to decide on the course of the proceedings, aid the parties in reaching a settlement that is mutually beneficial and to uphold and abide by the principles of fairness, neutrality, justice and objectivity while striving to reach a settlement as well as during the course of the decision-making process. The Arbitration and Conciliation Act, 1996 bestows upon the conciliator certain responsibiities and provides for some guidelines that a conciliator has to follow. Unlike mediation, the conciliator is pro-active in the conciliation process and autonomy is allowed to him/her on certain grounds. However, that autonomy is limited unlike arbitration. The various aspects of a conciliator's role in conducting the conciliation proceeding has been discussed below :
According to section 63 of the Act, there could either be a sole conciliator or two or three conciliators, according to the wishes of the parties. In case of more than one conciliator, they shall work jointly and in cooperation with each other,
According to section 64 of the Act, to conduct the proceedings of the conciliation, the parties may appoint the conciliator or conciliators, if there are more than one. When there are three onciliators, the parties shall appoint the two conciliators and they, in turn, shall apoint the third conciliator. In the second part, the Act stresses that the parties may take the assistance of a third party or institution in regards to the appointment of the conciliator/conciliators. Such party may directly appont the conciliator or recoomend his/her name to the parties for appointment. The condition that has been attached to this clause is that while making the appointment, such party or instituition shall keep in mind such considerations as are required to ensure the neutrality and independence of he conciliator. Also, the secton strsses upon the fact that theparties and the conciliators should not be of th same nationality.
According to section 67 of the Act,
-the conciliator shallmiantain his independence and impartiality and persuade the parties in away to help them reach an amicable settlement.
-the conciliator should not onlyuphold theprinciples of of objectivity, fairness and justicebut should also keep in mind the rights and obligations of the parties and various circumstances surrounding the dispute.
-the conciliator may conduct the proceedings of the case in a manner that is appropritae in his opinion. However, he should consider the circumstances leading to the case and the wishes of the parties or any other requests of the parties that are related to the subject of the dispute and are reasonable in the eyes of the law.
-a settlement of the dispute can be proposed by the conciliator at any time when the proceedingsae still in force. Any such settlement proposition need not be in writing or accompanied by a statement of reasons, necessarily.
According to section 69 of the Act, the concliator may communicate with the parties orally or in writing. The communication could take place either individually or in groups as suits the needs of the proceedings. The place of such meeting shall be decided by the conciliator in consultation with the parties.
According to sections 70 ad 75, confidentiality should be ensured from the ends of both the conciliator as well as the parties. No information should be passed on to a third party except in cases of enforcement or implemenattion of the conciliation proceedings.
According to setion 80 of the Act, a concliator should not be an arbitrator or a representative of the parties in any kind of legal proceedings in respect to a matter that is subject of the dispute. He/she also cannot be presented as a witness for/against the parties in any arbitral or judicial proceeding.
- who is a conciliator in a conciliation proceeding ?
- relevant sections of the Arbitration and Conciliation Act, 1996
- a conciliator's duties and responsibilities in a conciliation proceeding
