EMERGENCE OF CONCILIATION AS AN ADR PROCESS
Conciliation ensures that issues are settled without litigation. This is a mechanism in which the parties nominate independent persons or persons with mutual consent by agreement to settle their dispute by consensus or by using convincing and similar techniques.
The days are gone when arbitration was considered a cheap and successful solution. Now the situation has witnessed a volte-face change. Arbitration hearings have been excessively complex and expensive. Reference can be made to the Indian Supreme Court's judgment in this respect. In Guru Nanak Foundation V. Rattan Singh & Sons, The SC stated that they saw Arbitration Act, 1940 as an alternate forum to resolve disputes less formally, more effectively and in a speedy manner. However, the way proceedings under the act are conducted and without an exception challenged in the courts, it certainly has defied its purpose. “Informal forum chosen by the parties for expeditious disposal of their disputes has by the decisions of the court been clothed with the legalese of unforeseeable complexity.”
Among the litigants there is a growing sense that they would have been better off if there had been no settlement provision, to bring a civil suit it just required three measures, that is. (I) filing of pleadings; (2) proceedings; and (3) decision. For an arbitration proceeding, there are as many as six stages, as compared to three levels involved in a civil suit, viz. the appointment of the arbitrator either by the parties or by the court; pleadings before the arbitrator; proceedings before the arbitrator; award; filing of the award in the court; and recourse to a court against an arbitral award.
Also, in conciliation, there are at least three advantages if the parties are able to resolve their differences in a fair manner by conciliation, viz. 1) Fast-track. The parties should devote their resources and time to greater and more productive work. 2) On the economic front. One can save it for better dividends instead of wasting hard-earned money on lawsuits. 3) Social relations - The parties go happily to their respective places and stand free from bickering, and enmity that might have lingered on for decades in certain instances.
Conciliation is non-bonding and private, as opposed to arbitration. If successful, conciliation leads to a dispute settlement. Conciliators, like arbitration, are chosen by and served at the expense of the parties. Conciliation is less formal than arbitration, but is more evaluative than other methods of mediation resolving the process. Conciliators can be retired judges, senior attorneys or non-lawyers with subject matter expertise. The court does not take any formal role in supporting conciliation.
But the prerequisite of successful conciliation, it is important to bring the parties to the conflict face to face in a shared place where they can engage with each other and with the conciliator in order to arrive at a resolution of the dispute. The value of conciliation is that the presiding authority gives it in every judgment of the proceeding and it is accordingly binding.
Conciliation is increasingly given preference over arbitration nowadays owing to its versatility in solving a variety of disputes. This process is committed towards maintaining confidentiality in the proceedings, and thereafter, of the dispute, the information exchanged, the offers and counter offers of solutions made and the settlement arrived at.
It is cost-effective and contributes to speedier conflict resolution and encourages the preservation of a continuing relationship between the parties even after the settlement or at least during the settlement time. This function is of special significance to those parties that are expected to maintain their relationship despite the conflict, as in the case of disputes arising from building contracts, family relationships, family property or disputes between members of any company or other organization. Hence, in the ever-growing corporate world, conciliation is becoming a better option.