Conciliation & Conciliators: Objects, Duties, Powers, Disputes & Cases
BY: HARSHIL VAISHNAV
Conciliation is an out of court dispute resolution instrument, through which parties under dispute can seek to an amicable dispute resolution with the assistance of a third party who acts as a neutral party. Conciliation is a voluntary, flexible, confidential and internet based project. The third party is sought for the conciliation proceedings are known as a conciliator. The decision whether to settle depends on the parties.
Objects of Conciliation
The main object of conciliation is to help parties reach to a settlement without going to the court. The process of conciliation is comparatively cheaper than going to the court of law and fighting cases for years and years.
Conciliation vs. Litigation
For many years litigation was the only method sought by parties to settle their disputes. But the time and money spent on the proceedings lead to the drifting of these parties to some other methods like mediation and conciliation. Conciliation is an alternative to litigation. Conciliation is a cheaper and faster process than litigation. The parties seek remedy out of the court. If the parties are not satisfied with the decision of the conciliator, then they have an option to go to the court, but this is not a possibility in case of litigation. The parties, if unhappy by the decision of the court can only file an appeal as they are bound by the decision. The settlement reached to by the conciliator is not binding on the parties.
Although Conciliation is not compulsory and binding and also many a times does not resolve a dispute, but it saves a considerable amount of Court resources and a lot of time and money of the parties.
Disputes which can be settled by Conciliation
The disputes arising out of legal relationship, whether contractual or not and to all proceedings relating thereto. Thus all relationships arising out of law can be brought for conciliation in case of a dispute.
Duties and Powers of Conciliator
- The conciliator shall assist the parties in an independent manner thereby helping them to reach an amicable settlement
- The conciliator shall conduct the proceedings of conciliation taking into account and consideration the facts and circumstances of the case and also the wishes of the parties are to be considered.
- The Conciliator shall consider the rights and obligations of the parties and the previous relations between the parties.
- The Conciliator has the duty and power to make proposals for settlement of dispute at any stage of the proceedings. These proposals are not mandatory to be in writing and need not be accompanied by a statement of the reasons.
- The conciliator has a duty to disclose all information received from one party to the other party so as to give the other party an opportunity to present their side of the case.
- The conciliator has a duty to keep all matters relating to the proceedings confidential.
Difference between Arbitration and Conciliation
- Arbitration is a method where an impartial third party hears to the parties and settles their dispute and such settlement is binding on the parties, whereas, conciliation is a process whereby the conciliator negotiates between the parties and settlement is done. Such settlement is not binding on the parties.
- An arbitrator can enforce his decision; however, a conciliator does not have the power to enforce his decision.
- An agreement between the parties is required to be in existence before seeking the help of the arbitrator. In conciliation, no prior agreement is required.
- The proceedings of arbitration are legal, however, it is not the case in conciliation.
- Haresh Dayaram Thakur v. State of Maharashtra and Ors. the court held that a conciliator is a person who assists the parties to settle disputes amicably. For this purpose that conciliator has the power to decide the procedure to be followed in the conciliation proceedings. The conciliator if satisfied that there exist an element of settlement between the parties, then he can propose the terms of such settlement to the parties.
- In Mysore Cements Ltd. v. Svedala Barmac Ltd it was said that Section 73 of the Act speaks of Settlement Agreement. If the conciliator proposes a settlement and the parties agree to it, then a settlement agreement is drawn and signed by the parties. Once signed, the settlement becomes binding on the parties.
The process of conciliation as an alternative dispute resolution system has gained acceptance by many people as it is beneficial for them in the aspects that it saves them a lot of time and money. For the conciliator to exercise his duties properly, the parties should come face to face and try to settle the dispute.
Harshil Vaishnav is a law student pursuing B.B.A.LL.B at New Law College, Bharati Vidyapeeth University and contributes and utilizes his skills and strengths effectively in the field of law.