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Mechanism of Conciliation

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Mechanism of Conciliation 1 Mechanism of conciliation By Naimish Tewari1 In the 21st centaury, the population of our country stands approximately one hundred and thirty crores. The Indian judiciary is flooded with cases, moreover the Supreme court having a strength of just thirty-one judges has to look upon the seventh largest county of the world, it is a matter of fact that it takes decades for a person for finding justice, and justice delayed is justice denied. Arbitration and conciliation are the two mechanisms which developed because of the lawefficiency of the Indian judiciary, and the rate of disposal of cases be it either civil or criminal it is a matter of fact that it takes a grandfather to file a suit and it ends with his grandson, to counter this arbitration and conciliation came into picture, both are alternate dispute resolving mechanisms which save time and provide quick resolution, further it provides confidentiality and it is a much more friendly mechanism. Conciliation is a mechanism which is developed for dispute resolution and it is used on a global scale, it is a friendly way of negotiation out of court, in which the adjudicating authority has no binding power, it is different from arbitration as arbitration is a result of a former agreement of arbitration, or contract and arbitration is binding on the parties unlike conciliation, the process of conciliation. Conciliation has been said to be important for several factors, and special importance given to the political aspects arising out of conciliation as a dispute resolving mechanism2. Conciliation is regarded as an important legal concept as it is an amicable solution for international disputes. It is to be noted that conciliation respects the conditions of both the parties and it is not legally binding and non-enforceable, it is just a part of an alternate dispute mechanism, the positive part being that if a person is not satisfied with the result 1Student of law, 2st year, Symbiosis law school Noida, Symbiosis International University. [email protected] 2Helmy, Nabil Ahmed, International Conciliation, 1990, p.7 2 arising in a national or international dispute, the person can simply deny to the obligations, as they carry no legal sanction with its non-compliance, conciliation is a result of the process of mediation3 The process or mechanism of conciliation starts with both of the parties accepting to solve the dispute through conciliation. For conciliation, in the early ages process of conciliation had 2 phasesunder which the facts were explained and ascertained, while in the next step was giving way to a process of reconciliation. If we talk about the definition of conciliation, it is a process of solving a dispute, by the intervention of a third party, which further gives suggestions on how to settle the disputes which may or may not be accepted by the parties. The primary objective of conciliation is to end the dispute between the parties and make them reach a result which is mutually acceptable, section 614 defines the application and the scope of this process of conciliation, this section defines that the process of conciliation must arise of a legal relationship, in other words or a lay man’s language a legal right of either party should be violated and the parties should have the right to frag the other in a court of law. It is to be understood that conciliation may extend as defined in section 61, but conciliation maybe barred by a law of the parliament in force from time to time for specific conditions. Section 63 of the act, talks about the number of selections for the conciliators, the provision provides for a sole conciliator, but the consent of the parties may provide two or maybe three conciliators which should act as general provided by the statute. Section 64 deals about the procedure of the appointment of the conciliators, in the process first a request of conciliation is sent by a party, when the request of conciliation has been honored and accepted by the other party then it comes through the appointment of the conciliation board, the law talks about the appointment of one sole conciliator which is to be appointed by the mutual understanding by both the parties, but in case each party can appoint its own conciliator, and the maximum number of conciliators is three, and in cases of three the third is appointed by the mutual understanding of both the parties, and the third mutually appointed conciliator is appointed as the presiding conciliator for the process of conciliation. 3Herrmann, Conciliation as a New Method of Dispute Settlement, in New Trends in the Development of International Commercial Arbitration and the Role OF Arbitral and Other Institutions (P. Sanders ed. 1983), p.145 . 4Arbitration and Conciliation Act 1996 3 However, in certain cases an organization be appointed as a conciliator, in that case the conciliator is appointed by the organization and it is the duty of the organization to preside that the appointed person or persons are not acting arbitrarily or are being unfair. Section 61 (1) of the act talks about the impartiality and the independence of the conciliator so appointed, the only function of the conciliator is to foster both the parties seeking conciliation to reach a amicable solution of the dispute so raised. The goal of this procedure is to help the party, lighten a way for the parties to have a peaceful settlement, second step for the process is defines in the next subsection, 67(2) about fairness and justice i.e. the person who is appointed to be the conciliator is supposed to be guided by the principles of justice and fairness, the conciliator should be guided by the morality of law. The conciliator has to keep the factors in mind, be it the obligations of both the parties, be it the situations because of which the dispute has existed or the trade conditions between the two disputed parties, respecting their business relations etc. Section 70, talks about the confidentiality of the dispute mechanism, one of the traits of conciliation is the fact that dispute is confidential and the dispute resolving person, the conciliator is duty bound to keep all the proceedings of conciliation going on confidential, not only the proceedings, but also the former business-related information and all the circumstances revolving the dispute is to kept strictly confidential. After these process has commenced the conciliator may ask both the parties to give him a brief about the dispute, he may ask them to meet with him from time to time, he might communicate them through oral methods or even in writing, the conduct of the conciliator shall be free and he will be free to make his decisions but his priory should be to hear the parties and provide justice to them. If the conciliator needs administrative assistance according to section 68, it can be provided to the conciliator but only and only with the consent of the parties, and through the institution from which he needs administrative assistance. After studying the facts and the circumstances of the dispute, the conciliator is supposed to come with a proposal for both the parties to amicably resolve the dispute which is upon the parties to accept or to deny the proposal. .
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