ADR UNIT-3

Asst Prof Nithin Rajeev, ISBR Law College

 CONCILIATION
◦ 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 parties' legal positions, but also their; commercial, financial and / or personal
interests.
• Conciliation ensures party autonomy.
The parties can choose the timing, language, place, structure and content of the conciliation proceedings.
• Conciliation ensures the expertise of the decision maker.
The parties are free to select their conciliator. A conciliator does not have to have a specific professional background.
The parties may base their selection on criteria such as; experience, professional and / or personal expertise,
availability, language and cultural skills. A conciliator should be impartial and independent.
• Conciliation is time and cost efficient.
Due to the informal and flexible nature of conciliation proceedings, they can be conducted in a time and cost-efficient
manner.
• Conciliation ensures confidentiality.
The parties usually agree on confidentiality. Thus, disputes can be settled discretely and business secrets will remain
confidential.
◦ Kinds of conciliation
◦ A)Voluntary conciliation – In Voluntary conciliation, parties can voluntarily participate in settling their
dispute.
◦ B)Compulsory conciliation –
◦ In Compulsory conciliation parties do not want to participate in voluntary conciliation then they can go for
compulsory conciliation.
◦ When the parties do not want to meet the other party to settle the dispute then the Compulsory conciliation
method is used.
◦ Facilitative conciliation
◦ In facilitative conciliation, the conciliator structures a process to assist the parties in reaching a mutually
agreeable resolution. The conciliator asks questions; validates and normalizes parties’ points of view;
searches for interests underneath the positions taken by parties; and assists the parties in finding and
analyzing options for resolution. The facilitative conciliators does not make recommendations to the parties,
give his or her own advice or opinion as to the outcome of the case, or predict what a court would do in the
case. The conciliator is in charge of the process, while the parties are in charge of the outcome.
◦ Evaluative Conciliation
◦ Evaluative Conciliation is a process modeled on settlement conferences held by judges. An evaluative
conciliator assists the parties in reaching resolution by pointing out the weaknesses of their cases, and
predicting what a judge or jury would be likely to do. An evaluative conciliator might make formal or
informal recommendations to the parties as to the outcome of the issues.
◦ Evaluative conciliators are concerned with the legal rights of the parties rather than needs and interests, and
evaluate based on legal concepts of fairness. Evaluative conciliators meet most often in separate meetings
with the parties and their attorneys, practicing “shuttle diplomacy”. They help the parties and attorneys
evaluate their legal position and the costs vs. the benefits of pursuing a legal resolution rather than settling in
conciliators. The evaluative conciliators structures the process, and directly influences the outcome of
conciliators.
Court Annexed Conciliation – The Court provides the conciliation service as an extended service of its judicial
system. Court maintains a database of skilled and professional individual who acts as a conciliation on behalf of
Court. The overall supervision on the process is maintained as well as the confidentiality of the matter is retained.
The same lawyers who appear in a case retain their brief and continue to represent their client in front of the
conciliation. The litigant also feels the sense of empowerment by being allowed to play a participatory role in
resolving their disputes.
◦ Roles and responsibilities of a conciliator
◦ Conciliators have a variety of roles and responsibilities to ensure that the parties reach a fair
resolution. Hold meetings with each individual party to discuss how the meeting will go
• Review relevant documents and information to help reach conclusions
• Maintain a neutral position within a meeting to ensure both parties receive fair
considerations
• Allow parties involved to reach their own resolution
• Be prepared to settle disputes by issuing their own resolution, should the parties ask
• Meet with witnesses and other persons related to the parties to obtain statements and
additional information about the dispute in question
• Prepare settlement agreement documents based off of the resolution the parties reached
• Practice confidentiality regarding the parties, their personal information and details
regarding the dispute
◦ Qualifications of Conciliators

In the case of conciliators, there is no rigorous requirement of qualifications. Similar to the arbitrator, the
conciliator must be of age and sound mind, and legally competent to contract.
◦ Second, the conciliator is appointed by either direct mutual agreement of the parties or indirect mutual
agreement of the parties.
◦ The conciliator must also be impartial and independent.
• Critical-thinking.
• Written communication.
• Verbal communication.
• Organization.
• Active listening.
• Interpersonal communication.
• Spontaneous and creative
◦ Procedure Of Conciliation
◦ Commencement of the conciliation proceedings– Section 62
◦ According to it the conciliation proceedings are initiated by one party sending a written invitation to the other
party to conciliate. The invitation should identify the subject of the dispute. Conciliation proceedings are
commenced when the other party accepts the invitation to conciliate in writing. If the other party rejects the
invitation, there will be no conciliation proceedings. If the party inviting conciliation does not receive a reply
within thirty days of the date he sends the invitation or within such period of time as is specified in the
invitation, he may elect to treat this as rejection of the invitation to conciliate. If he so elects he should inform
the other party in writing accordingly.
◦ Submission of Statement to Conciliator- Section 65
◦ According to it the conciliator may request each party to submit to him a brief written statement. The
statement should describe the general nature of the dispute and the points at issue. Each party should send a
copy of such a statement to the other party. The conciliator may require each party to submit to hima further
written statement of his position and the facts and grounds in its support. It may be supplemented by
appropriate documents and evidence. The party should send the copy of such statements, documents and
evidence to the other party. At any stage of the conciliation proceedings, the conciliator may request a party to
submit to him any additional information which he may deem appropriate.
◦ Conduct of Conciliation Proceedings- Section 69(1) and 67(3)
◦ According to it the conciliator may invite the parties to meet him. He may communicate with the parties
orally or in writing. He may meet or communicate with the parties together or separately. In the conduct of
the conciliation proceedings, the conciliator has some freedom. He may conduct them in such a manner as he
may consider appropriate. But he should take in account the circumstances of the case, the express wishes of
the parties, a party’s request to be heard orally and the need for speedy settlement of the dispute.
◦ Administrative assistance- Section 68
◦ It facilitates administrative assistance for the conduct of conciliation proceedings. Accordingly, the parties
and the conciliator may seek administrative assistance by a suitable institution or the person with the consent
of the parties.
◦ 69. Communication between conciliator and parties.—(1) 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. 32 (2) Unless the parties have agreed upon the place where meetings with the conciliator are to be
held, such place shall be determined by the conciliator, after consultation with the parties, having regard to the
circumstances of the conciliation proceedings.
◦ 70. Disclosure of information.—When the conciliator receives factual information concerning the dispute from a
party, he shall disclose the substance of that information to the other party in order that the other party may have the
opportunity to present any explanation which he considers appropriate: Provided that when a party gives any
information to the conciliator subject to a specific condition that it be kept confidential, the conciliator shall not
disclose that information to the other party.
◦ 71. Co-operation of parties with conciliator.—The parties shall in good faith co-operate with the conciliator and, in
particular, shall endeavour to comply with requests by the conciliator to submit written materials, provide evidence
and attend meetings.
◦ 72. Suggestions by parties for settlement of dispute.—Each party may, on his own initiative or at the invitation of
the conciliator, submit to the conciliator suggestions for the settlement of the dispute.
◦ 73. Settlement agreement.—(1) When it appears to the conciliator that there exist elements of a settlement
which may be acceptable to the parties, he shall 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.
◦ (2) If the parties reach agreement on a settlement of the dispute, they may draw up and sign a written
settlement agreement. If requested by the parties, the conciliator may draw up, or assist the parties in drawing
up, the settlement agreement.
◦ (3) When the parties sign the settlement agreement, it shall be final and binding on the parties and persons
claiming under them respectively.
◦ (4) The conciliator shall authenticate the settlement agreement and furnish a copy thereof to each of the
parties.
◦ Principles of Conciliation Procedure
◦ Independence And Impartiality– Section 67(1)
◦ According to it the conciliator should be independent and impartial. He should assist the parties in an independent and
impartial manner while he is attempting to reach an amicable settlement of their dispute.
◦ Fairness and justice- Section 67(2)
◦ According to it the conciliator should be guided by the principles of fairness and justice. He should take into consideration,
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.
◦ Confidentiality- Section 70
◦ According to it the conciliator and the parties are duly bound to keep confidential all matters relating to conciliation
proceedings. Similarly when a party gives information to the conciliator on the condition that it be kept confidential, the
conciliator should not disclose that information to the other party.
◦ Disclosure Of The Information– Section 70
◦ According to it when the conciliator receives information about any fact relating to the dispute from a party, he should
disclose the substance of that information to the other party. The purpose of this provision is to enable the other party to
present an explanation which he might consider appropriate.
◦ Co-operation Of The Parties With Conciliator– Section 71
◦ According to it the parties should in good faith cooperate with the conciliator. They should submit the written materials,
provide evidence and attend meetings when the conciliator requests them for this purpose.
◦ CONCILIATION UNDER DIFFERENT STATUTES

INDUSTRIAL DISPUTES ACT, 1947

◦ Section 4 of Industrial Disputes Act 1947 empowers the appropriate government to appoint such number of
persons as may be deemed necessary by notification in the official gazette as conciliation officers, for
discharging the responsibility of mediating in and promoting the settlement of industrial disputes. All Labour
officers, Asst. Labour Commissioner including Dy. Labour Commissioner, Labour appointed conciliation
officers. Government of N.C.T. of Delhi for administrative and public convenience has divided entire territory
into 9 districts i.e. East, North-East, South-West, West, South, North, North-West, Central & New Delhi.
◦ Section 12 of I.D. Act 1947 provides duties of conciliation officers. A conciliation officer is required to
investigate without delay the industrial disputes and make efforts to settlement thereof and for the purpose of
bringing about a settlement of the dispute he may do all such things as he deems fit for the purpose of bringing
parties to come to a fair and amicable settlement of the disputes.
◦ Conciliation proceedings in public utility services are deemed to have commenced on the date
when the conciliation officer receives the notice of strike or lock-out u/s 122 of I.D. Act 1947 and
in such cases he has to act with great speed in order to complete the proceedings within 14 days
time. In case of non public utility services, the conciliation officer has to give formal intimation in
writing to the parties declaring his intention to commence conciliation proceedings with effect
from such date as he may specify. ( compulsory in case of public utility services)
◦ The conciliation proceedings are concluded in the following manner. 1. Where conciliation ended
in settlement - the date on which settlement is signed by the parties to the disputes or
2. Where conciliation ended in failure, the date on which the failure report of conciliation officer
is received by the appropriate Govt.
3. When a reference is made to a Labour Court / Industrial Tribunal during the pendency of
conciliation proceedings
◦ Hindu Personal Laws and Special Marriage Act
◦ The Vedas and other Holy Scriptures makes reconciliation an essential tool to be followed by
Hindus before a marriage irretrievably breaks down. When the Holy Scriptures was codified to
unite the diverse laws of various sects of Hinduism, reconciliation is mandatory under The Hindu
Marriage Act, 1955 (HMA) and The Special Marriage Act, 1954 (SMA). Section 23(2) of the HMA
lays down that before proceeding to grant any relief under the HMA, it shall be a duty of the Court
in the first instance, to make every endeavour to bring about reconciliation between parties in all
cases. This is in relation to any relief sought on most of the fault grounds for divorce specified in
Section 13 of HMA. The provisions contained in Sections 34(2) and 34(3) of the SMA are pari
materia to the provisions contained in Sections 23(2) and 23(3) of the HMA.
◦ Muslim Personal Laws
◦ Contrary to popular belief about the unilateral methodology of the Muslim form of divorce, the
Quran lays down a specific four-step reconciliation procedure before the talaq is granted.
◦ As a first step, when there is a marital discord, the Quran laws down that the husband should try and
talk out the differences (faizuhunna) with his wife.
◦ In the event the misunderstanding between the parties persists, as a second step, the Quran
recommends that the parties should be asked to stay separately and keep any form of physical
intimacy in abeyance (wahjuruhunna). Such measure has been recommended so that temporary
separation may help the parties to reunite.
◦ In the event this procedure too fails, as a third step, the husband is instructed to discuss with his wife
again (wazribuhunna) about the seriousness of the situation in order to try and bring about
reconciliation. In pursuance of wazribuhunna, the husband shall try and explain to the wife that if
the differences are not resolved by the parties shortly, the dispute shall be taken beyond the confines
of the four walls of the home, which may be harmful to the interests of both the parties.
◦ In the event the dispute still remains unresolved, as a fourth step, the Quran requires the dispute to
be placed before two arbitrators, one from the family of each spouse, for resolution.
◦ Family Courts Act 1984
◦ The Preamble to the Family Courts Act, 1984 enacted by the Indian Parliament laws down as
follows:
◦ “An Act to provide for the establishment of Family Courts with a view to promote conciliation in,
and secure speedy settlement of disputes relating to marriage and family affairs and for matters
connected therewith.”
◦ Section 9 of the said Act makes it a duty of the Court to make efforts for a settlement. It shall be
worthwhile to note that the legislative intent and thought behind enactment of the said Act was to
provide not only legal remedy for settlement of family disputes but ensure that estranged families
avail of the services of professional and trained mediators who may provide counselling and easier
settlement of disputes. Thus, this enactment can be termed as a wholesome legislation on
reconciliatory modes in family law disputes in Indian matrimonial disputes.