This article has been written by Ms. Kriti Bhandari, a 2^nd year BBA LLB student form Narsee Monjee institute of management studies.

Introduction

The Arbitration and Conciliation Act, 1996, as its name suggests, covers both domestic arbitration and conciliation procedures. Sections 61 to 81 of Part 1 deal with the conciliation procedure, whereas Sections 1 to 43 of Part 1 deal with legislation governing domestic arbitration (Part II deals with enforcement of foreign awards). The contents of the Act can be read to see how the law clearly distinguishes between the conciliation and arbitration processes.

The head of a Conciliation Board is not an arbitrator, according to Halsbury’s Laws of England, which also states that “Conciliation is a technique of encouraging parties to reach an agreement, and is plainly not arbitration.” Conciliation is without a doubt the most popular alternative conflict resolution technique. It is predominantly a non-judicial power, as opposed to arbitration, which may have either a judicial or non-judicial form. In a word, conciliation is a process for resolving disputes outside of the courtroom or other legal avenues.

Meaning Of Conciliation

Conciliation, in a nutshell, is any alternative conflict resolution method that is supported by a third party (ADR). He discusses the details of the conflict with the parties and, armed with the knowledge gained, draughts and offers a solution that, in his opinion, is the most fair and reasonable. In contrast to mediation, the mediator here just assists the parties in reaching a settlement rather than offering a solution to them. Compared to the conciliation process, it is far less informal.

Unless both parties agree otherwise, conciliation is frequently a voluntary process, and any discussions held as part of the process are not legally enforceable. It is a form of alternative dispute resolution (ADR).

Depending on the preferences of the parties, section 63 of the Act allows for either a single conciliator or two or three conciliators. The role of a conciliator in a conciliation proceeding is that of a neutral adjudicator whose duties include making decisions about the course of the proceedings, assisting the parties in reaching a mutually beneficial settlement, and upholding and adhering to the principles of objectivity, neutrality, and justice as they try to reach a settlement. The Arbitration and Conciliation Act, 1996 assigns the conciliator certain duties and specifies several guidelines that they must follow. As opposed to mediation, the conciliation process entails the conciliator taking the initiative and, under some circumstances, granting autonomy to the conciliator. Such autonomy is restricted, as opposed to arbitration. The numerous dimensions of a conciliator’s role in the conciliation process are discussed below:

According to section 63 of the Act, the number of conciliators may be one, two, or three, depending on the preferences of the parties. If there are several conciliators, they must collaborate and function as a team.

In accordance with section 64 of the Act, the parties may select the conciliator or conciliators, if there is more than one, to direct the conciliation procedures. The parties will select the first two conciliators when there are three, and then they will select the third. The second provision of the Act emphasises that the parties may ask a third party or an institution for assistance in selecting the conciliator or conciliators. This party has the option of appointing the conciliator directly or by suggesting a candidate to the parties. This clause has a requirement that when appointing a conciliator, a party or institution must consider the elements required to guarantee the conciliator’s independence and impartiality. The necessity that the parties and the conciliators not share the same nationality is further emphasised in the Article.

According to section 67 of the Act, the conciliator must uphold his independence and impartiality and persuade the parties in a way that would help them to a mutually accepted agreement. In addition to respecting the concepts of objectivity, fairness, and justice, the conciliator should keep in mind the rights and obligations of the parties and the many circumstances surrounding the conflict.

The case’s proceedings may be handled anyway the conciliator sees fit. However, he must consider the circumstances that gave rise to the case, the parties’ preferences, and any other requests that are appropriate under the law and related to the current dispute.

While the processes are still being followed, the conciliator may provide a solution to the dispute at any time. Such settlement proposals are not required to be in writing or to include an explanation. In line with section 69 of the Act, the conciliator may communicate with the parties orally or in writing. Individual or group communication is possible, depending on the requirements of the operations. After conferring with the parties, the conciliator will decide where to hold the conference. Both the conciliator and the parties must uphold confidentiality, according to Sections 70 and 75. No information shall be shared to a third party, except for cases involving the enforcement or application of the conciliation proceedings.

Section 80 of the Act prohibits a conciliator from acting as an arbitrator or as a party’s representative in any judicial proceeding regarding the subject matter of the dispute. He or she is also prohibited from testifying for or against the parties in any arbitration or legal proceeding. 

The conciliation is better than other alternative modes of dispute resolution. Arbitration is no longer seen as a practical and affordable tool. The circumstances are very different now. Arbitration has grown excessively complex and expensive. You can look at the Supreme Court of India’s ruling for perspective. V Rattan Singh & Sons at the Guru Nanak Foundation noted: ” “The never-ending, difficult, expensive, and time-consuming legal procedure compelled our attorneys to look. A less formal, quicker, and more effective alternative venue for settling conflicts without following procedures

False, it was this that prompted the 1940 Arbitration Act. But the following is how this legislation governs the conduct of proceedings:

Legal philosophers and practitioners have laughed and cried over this technique, which is frequently tested in court. Legal judgements and field reports are adequate proof that the procedures have been made law.

very technical, filled with redundant information at every turn, and unintentionally setting up legal snares. Court orders will govern the informal forums that the parties use for quick dispute settlement.

It is covered with unexpected sophisticated “legal terminology.”” In general, a party will profit from being able to settle a conflict correctly in three different ways.

Arbitration-mediated dispute, or 1) speed. Parties are free to invest their time and effort in more effective and beneficial work.

2) Cost-effective You may put your hard-earned money towards bigger profits rather than wasting it on legal fees.

third) Social In certain instances, disputes and enmities may last over generations as the participants joyfully return to their respective locations. A rising number of litigants believe that they would be better off avoiding litigation.

Only three actions are required to file a civil complaint under the arbitration clause.

Firstly, The delivery of briefs.

Secondly, process management; thirdly, judgement.

In contrast to the three steps of civil litigation, arbitration might have up to six phases.

(1) The Parties or the Court may appoint the arbitrator.

(2) A request to the arbitrator

(3) The arbitrator’s hearings.

(4) Honors.

(5) Present the decision to the Court; and

 (6) File an appeal of the Arbitration Award.

Conclusion

The Act’s inclusion of conciliation as an alternative dispute resolution method is a positive step in encouraging parties to select it. Given the time, effort, and expense involved in taking disputes before a court or arbitrator in India, conciliation should be the preferred technique for resolving disputes, especially those of a commercial nature.

Therefore, before initiating arbitration or legal action, parties should select conciliation as a form of dispute settlement. Arbitration or litigation should only be considered by the parties after unsuccessful attempts at conciliation.

References

1. https://www.mondaq.com/india/arbitration–dispute-resolution/989064/critical-analysis-of-the-conciliation-proceedings-under-the-arbitration-and-conciliation-act-1996.
2. https://theindianlaw.in/conciliation-meaning-and-procedure-in-india/
3. https://ibclaw.in/section-81-admissibility-of-evidence-in-other-proceedings/
4. https://www.whatishumanresource.com/arbitration–conciliation

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