KR MANGALAM UNIVERSITY

GURUGRAM

ASSINGMENT
TOPIC: CONCILIATION AND THE ROLE OF
CONCILIATORS
SUBJECT: ALTERNATE DISPUTE RESOLUTION
Submitted to: DR. ARCHANA VASHISHTH
Prof. School of Law
Submitted by: Dheeraj Singh
LLB (H) IV Semester
1805230009
 INDEX
 Introduction
 Conciliation
 Conciliator
 Procedure of Conciliation
 When is conciliation suitable
 Advantages and disadvantages of Conciliation
 Case law
 Appointment of conciliators
 Roles of Conciliators
 The settlement agreement
 Termination of conciliation proceedings
 Conclusion
 ACKNOWLEDGEMENT
I would like to express my special thanks of gratitude to my professor DR.
ARCHANA VASHISHTH who gave me the golden opportunity to do this
wonderful assignment on the topic CONCILIATION AND THE ROLE OF
CONCILIATORS, which also helped me in doing a lot of Research and I came to
know about so many new things, secondly I would also like to thank my friends
who helped me a lot in finalizing this assignment within the time limit frame.
 INTRODUCTION

Conciliation
Conciliation means settling disputes without litigation. It is an informal process in which
conciliator i.e. third party tries to bring the disputants to agreement. He overcomes the disputable
issues by lowering the tension, improvement in communication, interpreting issues, providing
technical assistance, exploring potential solutions and bringing the negotiated settlement before
the parties. Conciliator adopts his own method to resolve the dispute and the steps taken by him
are not strict and legal. There is no need of agreement like arbitration agreement. The acceptance
of settlement is needed by both of the parties.

Part III of the Arbitration and Conciliation Act, 1996 deals with conciliation. it is a voluntary
proceeding where parties in dispute agree to resolve their dispute through conciliation. It is a
flexible process which allows the parties to decide the time and place for conciliation, structure,
content and terms of negotiations. In Conciliation, the conciliators are trained and qualified
neutral person who help the conflicting parties to make them understand the issues in dispute and
their interest to reach mutually accepted agreements. The conciliation process includes the
discussion between the parties which is made with the participation of the conciliator. It covers
many disputes like industrial disputes, marriage disputes, family disputes etc. This allows the
parties to control the output of their dispute. The result is also likely to be satisfactory.

Conciliation is an ADR process where an independent third party, the conciliator, helps people in
a dispute to identify the disputed issues, develop options, consider alternatives and try to reach
an agreement.  

Conciliator

Conciliator is the third party who is involved in settling the dispute of the parties. Generally,
there is one conciliator for the settlement but there can be more than one conciliator, if the parties
have requested for the same. If there is more than one conciliator then they will act jointly in the
matter. Section 64 deals with the appointment of conciliator which states that if there is more
than one conciliator then the third conciliator will act as the Presiding Conciliator.

A conciliator may have professional expertise in the subject matter in dispute and will
generally provide advice about the issues and options for resolution. However, a conciliator will
not make a judgment or decision about the dispute.

Conciliation may be voluntary, court ordered or required as part of a contract. It is often part of a
court or government agency process.
Procedure of Conciliation

The objective of the conciliation proceedings is to reach upon mutual terms, speedy and cost-
effective settlement of the dispute. Section 62 discuss the initiative of conciliation will start when
one party will send Written Invitation to conciliate upon the matter to the other party. There will
be the commencement of procedure if the other party accepts the invitation in writing to
conciliate. If the other party rejects the invitation or the party who is willing for the conciliation
does not get a reply from the other party within Thirty days then it will be treated as a Rejection
of the Invitation.

Section 65 explains the submission of the statements of both the parties to the conciliators. Each
party should submit a brief written statement regarding dispute as requested by the conciliator.
The statement should describe the general nature of the dispute and the points of issue. Each
party should send a copy of their statement to the other party. The conciliator can also ask for the
submission of written statements which includes issues of the parties, grounds of settlement etc.
These statements must be supplemented by evidence, documents or visual representation. The
copy of the same statement must be sent to the other party. Conciliator can also request for
additional documents whenever he needs them. According to Section 67(3) and 69(1), the
conciliator can set up meetings for the parties or he can meet parties together or separately. The
place of meeting can be decided by parties or conciliators. He can also communicate with the
parties orally or in written form. He must also consider the party’s expressed wishes like quick
settlement of the case which also depends upon the circumstances of the case.

The role of conciliators is similar to that of mediators except that the conciliator may also:

 have specialist knowledge and give you some legal information

 suggest or give you and the other participants expert advice on the possible options for
sorting out the issues in your dispute
 actively encourage you and the other participants to reach an agreement

The conciliator will not:

 take sides or make decisions

 tell you what decision to make, although they may make suggestions
 decide who is right or wrong
 provide counseling

Conciliation is usually held face to face, so that you can talk to each other directly. However, you
may also have separate sessions with the conciliator.
Sometimes the conciliator can act as a 'messenger' by talking to you and the other participants
separately and communicating ideas or proposals between you. It is also possible to hold
conciliation sessions by telephone in some circumstances.

When is conciliation suitable?

Conciliation is likely to be suitable if you:

 want to reach an agreement on some technical and legal issues

 want assistance with the process 
 want to make the decision with the other participants involved
 Want advice on the facts in your dispute.

Conciliation may also be suitable if you have tried mediation and still cannot reach agreement
with the other participants.

What role do lawyers or experts play?

The participants' lawyers can usually be present during conciliation. In some cases, experts may
also be present. Some conciliation processes do not require lawyers to participate. If you wish to
have your lawyer participate in a conciliation process or have experts attend, you should discuss
this with the conciliator before the process begins.

Advantages and disadvantages of Conciliation

Advantages

1. The conciliation procedure is of private nature. The documents, evidences or any other
information which are used during the process are Confidential.
2. One of the most important advantages is that they are Informal process and contains
Simple procedures which can be easily followed by the general people.
3. The process depends upon the circumstances of the case. In these processes the need of
the parties comes first like quick settlement of their cases so there is no chance for delay.
4. The selection of the conciliators depends upon the parties. The parties can choose
conciliator on the basis of their availability, experience in particular field, previous track
records of the cases, knowledge in subject area.
5. The conciliation is cheap as compared to litigation. They are cost effective and most
opted process for resolving disputes. It purely depends upon the nature of the dispute but
is widely acceptable.

Disadvantages

1. Conciliator is not a legally qualified person for resolving disputes. His decision is not
binding upon the parties.
 2. As the procedure of conciliation is informal and simple there is high possibility of
delivering injustice.
3. Miscommunication of information: The role of the conciliator to settle up the case by
giving information of one party to another and vice versa. The process of sending and
receiving information sometimes leads to mixed and incorrect information. So, by these
processes one can easily interpret the information given.

Case laws relating to Conciliation-

Haresh Dayaram Thakur v. State of Maharashtra and Ors. While dealing with the
provisions of Sections 73 and 74 of the Abbitration and Conciliation Act of 1996 in paragraph 19
of the judgment as expressed thus the court held that-"19. From the statutory provisions noted
above the position is manifest that a conciliator is a person who is to assist the parties to settle
the disputes between them amicably. For this purpose the conciliator is vested with wide powers
to decide the procedure to be followed by him untrammeled by the procedural law like the Code
of Civil Procedure or the Indian Evidence Act, 1872. When the parties are able to resolve the
dispute between them by mutual agreement and it appears to the conciliator that their exists an
element of settlement which may be acceptable to the parties he is to proceed in accordance with
the procedure laid down in Section 73, formulate the terms of a settlement and make it over to
the parties for their observations; and the ultimate step to be taken by a conciliator is to draw up
a settlement in the light of the observations made by the parties to the terms formulated by him.
The settlement takes shape only when the parties draw up the settlement agreement or request
the conciliator to prepare the same and affix their signatures to it. Under Sub-section (3) of
Section 73 the settlement agreement signed by the parties is final and binding on the parties and
persons claiming under them. It follows therefore that a successful conciliation proceedings
comes to end only when the settlement agreement signed by the parties comes into existence. It
is such an agreement which has the status and effect of legal sanctity of an arbitral award under
Section 74

Appointment of conciliators-

Section 64 deals with the appointment of the conciliators. When the invitation to the conciliation
is accepted by the other party, the parties have to agree on the composition of the conciliation
tribunal. In the absence of any agreement to the contrary, there shall be only one conciliator. The
conciliation proceeding may be conducted by a sole conciliator to be appointed with the consent
of both the parties, failing to which the same may be conducted by two conciliators (maximum
limit is three), then each party appoints own conciliator ,and the third conciliator is appointed
unanimously by both the parties. The third conciliator so appointed shall be the presiding
conciliator. The parties to the arbitration agreement instead of appointing the conciliator
themselves may enlist the assistance of an institution or person of their choice for appointment of
conciliators. But the institution or the person should keep in view during appointment that, the
conciliator is independent and impartial.
 ROLES OF CONCILIATORS (SEC.67)
 The conciliator shall assist the parties in an independent and impartial manner in their
attempt to reach an amicable settlement of their dispute.
 The conciliator shall be guided by principles of objectivity, fairness and justice,
giving consideration to, among other things, the rights and obligations of the parties,
the usages of the trade concerned and the circumstances surrounding the dispute,
including any previous business practices between the parties.
 The conciliator may conduct the conciliation proceedings in such a manner as he
considers appropriate, taking into account the circumstances of the case, the wishes
the parties may express, including any request by a party that the conciliator hear oral
statements, and the need for a speedy settlement of the dispute.
 The conciliator may, at any stage of the conciliation proceedings, make proposals for
a settlement of the dispute.

The conciliator may request each of the parties to submit a brief written statement describing the
general nature of the dispute and the points at issue, with a copy to the opposite party. At any stage
of the conciliation proceedings the conciliator may request a party to submit to him such additional
information as he deems appropriate.

The conciliator is supposed to assist the parties in an independent and impartial manner in their
attempt to reach an amicable settlement of their dispute. A conciliator assists parties by helping them
to initiate and develop positive dialogue, clarify misunderstandings, create faith upon one another
and generate a congenial atmosphere required for harmonious and cooperative problem-solving. In
order to justify his position the conciliator must be an impartial person. The parties should be able to
repose trust and confidence in him so as to enable them to share their secrets and their thinking
process with the conciliator with the belief that the same will not be divulged to other party without
specific instructions in that regard. The conciliator may conduct conciliation proceedings in such a
manner as he considers appropriate, taking into account the circumstances of the case and the wishes
of the parties. The conciliator has wide procedural discretion in shaping the dynamic process
towards a settlement. The process of conciliation, inter alia, involves creating a constructive bonding
between the parties to a dispute to steer them towards resolution.

The conciliator may conduct conciliation proceedings in such a manner as he considers appropriate,
taking into account the circumstances of the case and the wishes of the parties. The conciliator has
wide procedural discretion in shaping the dynamic process towards a settlement. The process of
conciliation, inter alia, involves creating a constructive bonding between the parties to a dispute to
steer them towards resolution. The conciliator is not bound by the Code of Civil Procedure, 1908 or
the Indian Evidence Act, 1872. He is to be guided by principles of objectivity, fairness and justice
giving due consideration to the rights and obligations of the parties, the usages of the trade
concerned and the circumstances surrounding the dispute, including any previous business practices
between the parties.
The conciliator may invite the parties to meet him or may communicate with them orally or in
writing. He may meet or communicate with the parties together or with each of them separately. The
conciliator may hold several joint or private meetings with the parties so as to enable the parties to
clarify their cases and so as to persuade the parties to arrive at a mutually acceptable solution. Unless
the parties have agreed upon the venue of conciliation proceedings the conciliator is supposed to
decide the venue of conciliation proceedings in consultation with the parties. Thus the conciliator is
vested with extensive power to choose and mould the procedure to be followed by him untrammeled
by the procedural laws, albeit in consultation with the parties. In order to facilitate the conduct of the
conciliation proceedings, the parties, or the conciliator with the consent of the parties, may arrange
for administrative assistance by a suitable institution or person. This shows that depending upon the
requirement from case to case basis the conciliator may or may not adopt a structured process in
conciliation.

Unless the parties have agreed upon the venue of conciliation proceedings the conciliator is
supposed to decide the venue of conciliation proceedings in consultation with the parties. Thus the
conciliator is vested with extensive power to choose and mould the procedure to be followed by him
untrammeled by the procedural laws, albeit in consultation with the parties. In order to facilitate the
conduct of the conciliation proceedings, the parties, or the conciliator with the consent of the parties,
may arrange for administrative assistance by a suitable institution or person.

The role of the conciliator is to assist the parties to arrive at an amicable settlement. The conciliator
may, at any stage of the conciliation proceedings, he make proposals for a settlement of the dispute.
In the Indian context the conciliator therefore plays an evaluative role while managing the process of
conciliation as opposed to a mere facilitator. The conciliator assesses the respective cases of the
parties and apart from acting as a facilitator suggests and advices the parties on various plausible
solutions to the parties so as to enable the parties to choose the best possible and apt solution. He
attempts to get the parties to accept the merits and demerits of their cases thereby leading them to a
mutually acceptable solution. The conciliator, in this manner plays a more proactive and
interventionist role in persuading the parties to arrive at a final settlement. In actual practice
conciliator needs to be a person who is not only well-informed and diplomatic but can also influence
the parties by his persona and persuasive skills. However, if the system of conciliation is to succeed
as a proficient ADR mechanism professional training of conciliators needs to be a mandatory
requirement.

THE SETTLEMENT AGREEMENT

When it appears to the conciliator that there exist elements of a settlement, which may be acceptable
to the parties, he is supposed to formulate the terms of a possible settlement and submit them to the
parties for their observations. After receiving the observations of the parties, the conciliator may
reformulate the terms of a possible settlement in the light of such observations. THE SETTLEMENT
AGREEMENT The statutory provisions .enjoin upon the conciliator to draw up and authenticate a
settlement agreement. He should ensure that the parties have full understanding of the settlement
terms. The agreement must embody the terms and conditions of the settlement with clarity and
precision. It is open to the parties to settle some of their disputes by conciliation and leave the
unresolved disputes between them for resolution by other modes of adjudication.
The settlement agreement must also bear the signatures of the parties. Once the parties sign the
settlement agreement, it shall be final and binding on the parties and persons claiming under them
respectively.

The settlement agreement drawn up in conciliation proceedings has the same status and effect as if it
is an arbitral award on agreed terms on the substance of the dispute rendered by an arbitral tribunal
under section 30 of the Arbitration and Conciliation Act, 1996. However it is only that agreement
which has been arrived at in conformity with the manner stipulated and form envisaged and got duly
authenticated in accordance with section 73 of the Arbitration and Conciliation Act, 1996, which can
be assigned the status of a true settlement agreement and can be enforced as an arbitral award.
Therefore a settlement agreement arrived in private conciliation proceedings can be enforced by
executing the same in a civil court as if it were a decree of the court.

TERMINATION OF CONCILIATION PROCEEDINGS

A successful conciliation proceeding concludes with the drawing and signing of a conciliation
settlement agreement. The signing of the settlement agreement by the parties, on the date of the
settlement agreement terminates conciliation proceedings.

That apart, any party may terminate conciliation proceedings at any time even without giving any
reason since it is purely voluntary process. The parties can terminate conciliation proceedings at any
stage by a written declaration of either party. A written declaration of the conciliator, after
consultation with the parties, to the effect that further efforts at conciliation are no longer justified,
also terminates conciliation proceedings on the date of such declaration.
Conclusion

The process of conciliation as an alternate dispute redressed mechanism is advantageous to the

parties in the sense that it is cost effective and expeditious, it is simple, fast and convenient then
the lengthy litigation procedure and it eliminates any scope of biasness and corruption. The
parties who wish to settle their disputes they can be provided great intensive by the process of
conciliation. In order to enable the conciliator to play his role effectively ,the parties should be
brought together face to face at a common place where they can interact face to face and with the
conciliator, separately or together without any distraction and with only a single aim to sincerely
arrive at the settlement of the dispute. Conciliation is a boon and it is a better procedure to settle
any dispute as in this process it is the parties who by themselves only come to the settlement of
the dispute and the role of the conciliator is to bring parties together and to make a atmosphere
where parties can themselves resolve their disputes. Conciliation tries to individualize the
optimal solution and direct parties towards a satisfactory common agreement. In conciliation, the
conciliator plays a relatively direct role in the actual resolution of a dispute and even advises the
parties on certain solutions by making proposals for settlement.

To conclude it can be said that the conciliator is a medium through which various disputes
between employer and the workman can be resolved. This is an impartial third person appointed
by the federal or provincial Govt. as the case may be and his main function is to bring about a
peaceful settlement between the disputed parties.