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Indian Politics & Law Review Journal (IPLRJ)
ISSN 2581 7086
CONCILIATION: A PERUSAL WITHIN THE ADR REGIME
Written by _Sidhika Dwivedi & Madhvendra Singh_* * 2nd Year BA LLB Student, Symbiosis Law School Noida ** 2nd Year BBA LLB Student, Amity Law School Noida
ABSTRACT
This research paper is written on the topic ‘ Conciliation: A Perusal within the ADR Regime’. The researchers have started the paper by telling the history of Conciliation in India, how the Law has transformed over time. The researchers have talked about the difference between conciliation and mediation through some authentic sources across the globe. The researchers have tried to cover all the legal aspects of conciliation majorly the procedure involved, the role of conciliator and the final settlement agreement. Keeping in mind the advantages and challenges, we have discussed relation of conciliation with Civil Justice system, commercial disputes and disputes arising in family. In the last we have given a set of suggestions and recommendations based upon our research work.
INTRODUCTION
“An ounce of conciliation is worth a pound of arbitration and a ton of litigation!” — Joseph Grynbaum According to information provided by the Registry of Supreme Court of India, as on 31.10.2006, more than 2,53,80,757 cases were pending in our subordinate Courts. The figure of pending adjudication is, surely, astonishing. To manage these cases, we have less than 15,000 judges and legal officials in the nation. The ratio of judges per million populations in India is the most reduced on the planet. This not just shows the dire
Indian Politics & Law Review Journal (IPLRJ)
ISSN 2581 7086 need of more legal advisors, judges, and courts, yet additionally elective techniques for illuminating questions that are increasingly conservative and effective in their working. Conciliation is an alternative out-of-court dispute resolution instrument. Like mediation, 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. Conciliation is a voluntary proceeding, where the parties involved are free to agree and attempt to resolve their dispute by conciliation. The process is flexible, allowing parties to define the time, structure and content of the conciliation proceedings. These proceedings are rarely public. They are interest-based, as the conciliator will when proposing a settlement, not only take into account the party's legal positions but also their; commercial, financial and/or personal interests.
HISTORY OF CONCILIATION IN INDIA
Conciliation is as old as Indian history. In Mahabharata when both parties were determined to resolve the conflict in battlefields, Lord Krishna made efforts to resolve the conflict. Now, the panchayat system works in the villages. The Indian system places a lot of importance on the resolution of disputes by negotiation which is purely conciliatory. Conciliation is essentially a consensual process. Under the Arbitration and Conciliation Act, 1996, it has the statutory sanction. The best example where conciliation played an integral role is of the highly politically sensitive case of the Beagle channel dispute over the ownership of certain islands in the entrance to the channel between Chile and Argentina. The mediator was the Vatican. The process was remarkable because it was flexible enough to accommodate the changing political environments in both countries and the mediator used a range of tools to great advantage. This process served to protect a fragile peace between the
Indian Politics & Law Review Journal (IPLRJ)
ISSN 2581 7086 As per the Hindu Law, one of the earliest known treatises that mentions about arbitration is "Brhadaranayaka Upanishad"xi. It elaborates about the various types of arbitral bodies which consist of 3 primary bodies namely ' Puga' the local courts, ' Srenis' the people engaged in the same business or profession and the 'Kulas' , who were members concerned with the social matters of a particular community and all these three bodies were cumulatively known as Panchayats. The members of the same were the Panchas, the then arbitrators, used to deal with the disputes under a system; we now refer to as Arbitration.xii^ It has been seen that the disputes which were referred to the Panchas and the courts have been duly recognized and have received credence to the awards passed by them. The same was observed by the Privy Council in the case of Vytla Sitanna vs. Marivada Virannaxiii. The Modern Arbitration Law was enacted in India as early as 1772 by the Bengal Regulation Act of 1772. This was a result of a successful resolution of disputes amongst parties by choosing a tribunal. Thereafter, the same was promulgated to other presidency towns namely Bombay and Madras through Bombay Regulations Act of 1799 and Madras Regulation Act of 1802. The first Legislative Council for India was shaped in 1834, trailed by the First Indian Arbitration Act on first July 1899. It came into power and said the act was in a general sense dependent on British Arbitration Act, 1889 however the utilization of the Indian Arbitration Act was limited distinctly to the presidency towns' i.e. Calcutta, Bombay, and Madras. A remarkable component in the Act was that the names of the authorities were to be referenced in the understanding; the mediator by then can likewise be a sitting judge, as was in Nusserwanjee Pestonjee and Ors. vs. Meer Mynoodeen Khan Wullud Meer Sudroodeen Khan Bahadoorxiv. On account of Gajendra Singh vs. Durga Kunwarxv^ it was seen that the Award as went in mediation is only a trade-off between the gatherings. In Dinkarrai Lakshmiprasad versus Yeshwantrai Hariprasadxvi, the Hon'ble High Court saw that the said Indian Arbitration Act, 1889 was extremely intricate, cumbersome and required changes.
Indian Politics & Law Review Journal (IPLRJ)
ISSN 2581 7086
DISSIMILARITIES: CONCILIATION & MEDIATION
Even though parliament clearly defines and states the difference between conciliation and mediation, people still get confused among the two. Here in this part, we have tried to present the difference between the two by giving backing from some authorities. In the year 1996, through the Arbitration and Conciliation Act Parliament tried to distinguish between the two. Section 30 of the act provides that dispute can be settled by an arbitral tribunal by the use of ‘mediation’ or ‘conciliation’. The sub-section (1) of the said section allows the arbitral tribunal to “use mediation, conciliation or other procedures” for reaching the stage of settlement. In the Civil Procedure Code (Amendment) Act, 1999 which introduced section 89 gave provision for conciliation and mediation as a different concept. Where order 10 Rules 1A, 1B, 1C of the said code goes along with section 89.xvii ‘Mediation’ is a facilitative process in which “disputing parties engage the assistance of an impartial third party, the mediator, who helps them to try to arrive at an agreed resolution of their dispute. The mediator has no authority to make any decisions that are binding on them, but uses certain procedures, techniques, and skills to help them to negotiate an agreed resolution of their dispute without adjudication.” xviii In the recent Discussion Paper by the Lord Chancellor’s Department on Alternative Dispute Resolution where while defining ‘Mediation’ and ‘Conciliation’, it is stated that ‘Mediation’ is a way of settling disputes by a third party who helps both sides to come to an agreement, which each considers acceptable. Mediation can be ‘evaluative’ or ‘facilitative’. ‘Conciliation’, it is said, is a procedure like mediation but the third party, the conciliator, takes a more interventionist role in bringing the two parties together and in suggesting possible solutions to help achieve a settlement. But it is
Indian Politics & Law Review Journal (IPLRJ)
ISSN 2581 7086 In the process of conciliation ordinarily there is only one conciliator unless the party requires two, three or more. If there is more than one conciliator, they are supposed to act jointly. Even the case of uneven number of conciliators is satisfactory since the work of the conciliator is to make recommendations for a settlement and not to deliver a decision. xxiii^ In conciliation process where there is only one conciliator, the parties can decide mutually among themselves. In case of two, each party may decide one each conciliator. There is also an option of requesting an institution for recommending any suitable conciliator may be specialized for that dispute.xxiv
ROLE OF CONCILIATOR
Before the process of conciliation begins both parties are required to submit a brief written statement where all the issues faced by them at that point in time have to be mentioned. The parties are also required to state the nature of disputes and give a copy of such statement to both the conciliator and the other party. xxv It is required from the side of conciliator(s) to assist the party in an independent and impartial manner so that they may reach an amicable settlement of their dispute.xxvi^ A conciliator is expected to initiate a positive dialogue between the party, an atmosphere where both the parties are free to disclose their state of mind for harmonious and corporative problem-solving, what they want from other parties, to create faith upon one another. The conciliator should try to refrain from creating an atmosphere where parties are playing blame game.xxvii^ The process of conciliation, inter alia , involves creating a constructive bonding between the disputed parties to steer towards resolution. It should be noted here that the conciliator is free to conduct the proceeding in any manner as he would consider appropriate for the parties and the nature of disputes. The conciliator has wide power in shaping the dynamic process towards a settlement.xxviii^ The Arbitration and Conciliation Act, 1996 has not kept conciliator
Indian Politics & Law Review Journal (IPLRJ)
ISSN 2581 7086 bound by any other procedural statute such as the Code of Civil Procedure, 1908 or the Indian Evidence Act, 1872.xxix^ Here the conciliator is bound by principle of objectivity, justice and fairness giving due consideration to the circumstances surrounding the disputes, including their previous business ventures.xxx^ The conciliator is free to meet any party or both parties at the same time. He can communicate with them orally or in writing. Also, the number of meeting is totally based upon the circumstance or where the process has reached.xxxi^ The conciliation has power to persuade both the parties so as to arrive where a mutually acceptable solution can be reached.xxxii^ Unless the parties have agreed upon the venue of the meeting it is expected of conciliator to decide the venue for the proceedings. Therefore, it can be concluded that the conciliator has all the power untrammelled by the existing procedural laws.xxxiii The conciliator may at any point of the proceedings, himself make a settlement for the dispute. In India conciliator plays an evaluative role while the process of conciliations opposed to a mere facilitator.xxxiv^ He attempts to get the gatherings to acknowledge the benefits and demerits of their cases along these lines driving them to a commonly adequate arrangement. xxxvThe conciliator, as such plays a progressively proactive and interventionist job in inducing the parties to land at a settlement. In genuine practice, conciliator should be an individual who isn't just well-educated and political yet can likewise impact the gathering by his persona and convincing abilities.xxxvi^ Be that as it may if the arrangement of assuagement is to prevail as a capable ADR system expert preparing of conciliators should be an obligatory prerequisite.xxxvii
THE SETTLEMENT AGREEMENT
At a point, if the conciliator feels that now the parties have reached the stage of settlement, he may formulate the possible terms of settlement and then submitted to the parties for their the observations so that they can also reformulate the terms in the light of their situations and circumstances.xxxviii
Indian Politics & Law Review Journal (IPLRJ)
ISSN 2581 7086 conciliation that distinguish it from arbitration. Conciliation is different from arbitration and hence is better suited in certain situations.
COST EFFECTIVENESS
The process of conciliation is a very economical mechanism for dispute resolution in comparison to prosecution and arbitration which makes it one of the best ADR mechanisms. As a number of hearing in settings of the process can be fixed bipartisan conciliator is it reduces multiplication of actual cost for the parties.xliii^ As we know conciliator has to follow specified procedure for the party keeping in mind the need for speedy settlement of the dispute.xliv^ Also, the conciliator can you practice time management tool to prevent extending on conciliation procedure for longer duration and insure that the conclusion is reached within a reasonable frame of time.xlv^ The end results in conciliation are based on negotiations that are treated to be an arbitral award on agreed terms by both parties, therefore, the possibility of success successive appeals and resolving the dispute in an expeditious and cost-effective manner increases.
AUTONOMY AND CONVENIENCE OF THE PARTY
Inferring the above content, we can conclude that conciliation is very flexible and convenient. Here parties are free to agree upon the procedure followed by the conciliator. The power for deciding time and venue for the meeting remains in the hands of both the parties and the conciliator himself.xlvi^ Taking into account the circumstances and the situation of the parties the venue and the procedure can be added according to the wish of the parties. This is commendable feature of conciliation that a party can withdraw from cancellation at any stage.xlvii^ Until and unless the party has full consent and willing to continue the process the resultant settlement agreement cannot be bound by the process upon the parties. One of the features of conciliation is
Indian Politics & Law Review Journal (IPLRJ)
ISSN 2581 7086 party autonomy which is very laudable feature. Unlike arbitration and litigation where the parties have no say in the procedure where the parties are bound by the verdict. Therefore, the parties and the conciliator does not only control the proceedings but also show the final outcome is in their hand.xlviii
HARMONY BETWEEN PARTIES
Litigation and Conciliation are different in a way that in litigation or arbitration one of the parties wins and the other one loses but in the case of conciliation since both parties agree and accept the same decision, both parties are winners. Hence, in Conciliation there is always a win-win situation as both the parties remain satisfied with the outcome. Conciliation is more favourable than arbitration as it makes easier for the parties to retain their good relationship after the result unlike in Litigation and Arbitration. In litigation always one-party wins and the other loses which creates a win-loss situation and further create barriers between the parties and therefore building good relationship again cease to continue. Conciliation proceedings do not always result in settlement but it still proves to be useful as it makes parties understand each other's versions, positions, and aspirations in a better way.
CONFIDENTIALITY
In conciliation confidentiality is something which is guaranteed by the statute itself in contradiction to judicial proceeding conciliation is a private process where inside a closed room two parties resolve their matter.xlix^ This is one of the best features of conciliation in alternative dispute resolution. in conciliation both the parties and the conciliator are required to keep the facts and all the material relating to the proceedings very confidential.l^ Parties are required not to speak regarding the views of other parties in respect of the possible settlement of their dispute. parties should also refrain from making admission of other parties and other conciliators in the course of the proceedings. during the course of cancellation process a consider is
Indian Politics & Law Review Journal (IPLRJ)
ISSN 2581 7086 Because of such a slow speed in the judicial system of India, international companies think before investing. they consider investing in India to be a legal risk and conclude that the exit is dependent upon the outcome of laborious litigation. Also, the problem faced by Indian judiciary system is the effectiveness of law the execution of law. Consequently, unless India provides a good system for dispute resolution it will be difficult to attract and retain international companies and their investments. Also because of the advantage’s ADR has one should always think about resolving a dispute outside the court first. All the fact the choice of judge or an expert who would be Also the fact that the choice of George Warren expert is totally in the hand of the business companies for parties. The only thing that is required to be decided before choosing such a person is that whether a person is having some kind of knowledge about that business practice area that commercial Express of the transaction or not. If yes then you are perfect to go with such an Intellectual.
CIVIL JUSTICE SYSTEM AND CONCILIATION
ADR is formulated with the purpose of reducing the burden of the already burdened system and render expeditious justice. Section 89 of the Code of Civil Procedure was introduced with the purpose of amicable, peaceful and mutual settlement between parties without the intervention of the court. At the commencement of the Code of Civil Procedure, a provision was provided for alternate dispute resolution, but the same was repealed by the enactment of the Arbitration Act, 1940 under section 49 and Schedule 10. Section 89 of the CPC came into being in its current form on account of the enforcement of the CPC Amendment Act, 1999 with effect from 1 July 2002. Later on, new alternatives were added which were not restricted to arbitration only. Section 89 along with rules 1A, 1B and 1C of Order X of the first schedule have been implemented by sections 7 and 20 of the CPC
Indian Politics & Law Review Journal (IPLRJ)
ISSN 2581 7086 Amendment Act, 1999 and cover the ambit of law related to alternative dispute resolution. The clauses under Order X are specified to ensure proper exercise of jurisdiction by the court. Sub-section (1) refers to the different mediums for alternate resolution and sub-section (2) refers to various Acts in relation to the mentioned alternate resolutions. According to section 89 of the CPC where it appears to the court that there exist elements of a settlement which may be acceptable to the parties, the court shall formulate the terms of settlement and give them to the parties for their observations and after receiving the observation of the parties, the court may reformulate the terms of a possible settlement and refer the same for arbitration; conciliation; judicial settlement including settlement through Lok Adalat (people’s court); or mediation. For arbitration or conciliation, the provisions of the Arbitration and Conciliation Act, 1996 shall apply and the rules can be made under Part X of the CPC for determining the procedure for opting for “conciliation” and up to the stage of reference to conciliation. Similarly, in case where the dispute is referred to Lok Adalat the provisions of section 20(1) of the Legal Services Authority Act, 1987 shall apply and for mediation, the court shall effect a compromise between the parties and shall follow such procedure as may be prescribed. While judicial settlement through Lok Adalat, as under sections 89(1)(c) and 89(2)(c), could only be in terms of Legal Services Authority Act, 1989.
FAMILY DISPUTES AND CONCILIATION
Family conciliation is a type of alternative dispute resolution for family law questions, for example, those including divorce, child custody, abuse or different issues. The appeasement procedure is normally done as an option, in contrast, to progressively escalated proper court hearings.
Indian Politics & Law Review Journal (IPLRJ)
ISSN 2581 7086 an unmistakable appearance of the court's responsibility to a settlement looking for an approachlvii. Likewise, it will lessen the build-up of cases while giving the gatherings a sound option. The Family Courts Act must be revised reasonably and a necessary mediation condition must be embedded. To keep up the wilful idea of mediation, an arrangement might be made which requires the gatherings to record satisfactory reasons under the watchful eyes of the court for not settling on mediationlviii. The Hindu Marriage Act may likewise be altered and mediation can be caused required to with the exception of the special cases given under Section 23(2). To make the procedure of mediation productive, arrangements might be made with respect to models to be pursued during intervention procedures. For this reason, a reference to Part III of The Arbitration and Conciliation Act, 1996 will be exceptionally useful explicitly as to the job to be played by the conciliator. As indicated by Section 67, the conciliator should act in a free and fair-minded way while encouraging a neighbourly settlement between the gatherings. What's more, he is to watch objectivity, decency, and equity and needs to give due thought to the rights and commitments of the two gatherings. Middle people encourage correspondence and collaboration between the gatherings, they help them in recognizing the issues, explaining needs, investigating zones of trade-off and discover purposes of understanding, goals of family question requires restorative guiding also, it is subsequently basic that goes between ought to be skilledlix, very much prepared and educated. Arrangements with respect to capabilities for a family question go-between can likewise be determined. Qualified middle people will likewise expand the believability and fame of mediation. Arrangements should likewise perceive nearby arbiters in light of the fact that a neighbourhood go-between who knows the neighbourhood conditions and the parties may resolve the question in a greatly improved manner than an outsider. In the Indian setting, such acknowledgment will encourage alternative dispute resolution as individuals are agreeable and fulfilled when their accounts are heard in
Indian Politics & Law Review Journal (IPLRJ)
ISSN 2581 7086 a casual nearby procedure. In the event that the parties find that the casual methodology is out of line or they can't arrive at a settlement, they can generally approach the formal legitimate framework, in this way mandatory intervention is protected enough. Mandatory Conciliation under Section 12 of the Industrial Disputes Act, 1947 has assumed an extremely indispensable job in building up and keeping up modern amicability by protecting connections. The accomplishment of mandatory conciliation in settling mechanical debates is another impetus for presenting the equivalent for goals of family questions. Further, obligatory intervention in family questions has had extensive accomplishment in nations like U.K. furthermore, Australia, who has a well-created foundation for continuing family question goals by intercession, India should likewise make a comparable endeavour.
COMMERCIAL DISPUTES AND CONCILIATION
This part of the paper of the kinds of the nature of commercial disputes and the ability of conciliation to provide suitable resolution method for the same. It is a fact that commercial disputes are inevitable. The way that the distributor handle can largely impact the probability of business. the poorly managed dispute can cost money create uncertainty among the investors and also degrade the reputation of a company. It is correctly said that conflict is a path part of an organization. It is known by different names such as many dispute difficulty difference order arrangements or agreement. And the result of a mismanaged dispute is the same which will somewhere threaten the very future of the organization. It is acknowledged that area processes like mediation and conciliation provide a platform for a party in commercial dispute to resolve and consider all the dimensions of dispute including financial emotional legal in protected and private environment. Also known fact that commercial disputes are often centred on a very sensitive commercial detailed dispute which part is would not prefer to be disclosed in public even to the investors. The feature of confidentiality of conciliation is highly attractive
Indian Politics & Law Review Journal (IPLRJ)
ISSN 2581 7086 Adalats themselves have encountered build-up, and a few litigants consent to placation as a method for further postponing the case procedure. At last, there is no set time or point inside the suit procedure at which a choice is made, by the courts, the gatherings or generally with respect to referral of the case to some type of elective contest goals.
RECOMMENDATIONS
We researchers suggest that conciliation ought to be obviously and reliably independently characterized in administrative structure, when the arrangement for conciliation is made in authoritative structure, it ought to be characterized as a facilitative and classified organized procedure wherein the gatherings endeavour without anyone else's input, on a deliberate premise, to arrive at a commonly worthy consent to determine their contest with the help of a free outsider, called a middle person. The parties may, whenever during an intervention procedure, demand the arbiter to assume the job of conciliator, subsequently changing over the procedure into a placation procedure. The key principles underlying conciliation should be set out in a statutory form. The cooperation in conciliation must be intentional, and any party engaged with an intercession or mollification, and the middle person or conciliator, may pull back from the procedure whenever and without clarification. The secrecy benefit doesn't make a difference – where exposure of the substance of the understanding coming about because of intercession or conciliation is essential so as to actualize or authorize that understanding; where revelation is important to anticipate physical or mental damage or sick wellbeing to an individual; where divulgence is legally necessary; where the intervention or placation correspondence is utilized to endeavour to perpetuate a wrongdoing, or to carry out a wrongdoing, or
Indian Politics & Law Review Journal (IPLRJ)
ISSN 2581 7086 to disguise a wrongdoing; or where divulgence is important to demonstrate or refute a case or protest of expert offense or carelessness documented against a middle person or conciliator. The parties might be supported by a middle person or conciliator to look for autonomous counsel, lawful or something else, before consenting to an arrangement went into during an intervention or pacification. The money related expense of conciliation ought to be borne by the parties, and ought to be based on a composed consent with that impact went into toward the start of the intercession or appeasement. This ought not to be translated as avoiding involved with common procedures in the High Court or Circuit Court from submitting to tax collection of costs any bill of expenses emerging from the procedures. The court, except if it is fulfilled that the conciliation condition is broken, is unequipped for being performed or is void, or that there isn't in truth any debate between the gatherings as to the issue consented to have alluded, should make a request remaining the procedures. Where a court hosts welcomed parties to think about utilizing conciliation, the court may, without an understanding by the parties as to money related cost, make such request for expenses acquired by either party regarding the conciliation process as it thinks about simply, including a request that the two gatherings bear the expenses similarly. The guardians or gatekeepers engaged with a family law question may (regardless of whether as a feature of an intercession or conciliation process or something else) get ready and concur a child-rearing conciliation, which accommodates child-rearing and guardianship courses of action for any offspring of theirs, by reference to the eventual benefits of every kid. A conciliator in an assuagement procedure including a family law contest will prompt any party that doesn't have a lawful agent or other expert guide associated with the
