Analyze the Process of Conciliation in Alternate Dispute Resolution (ADR)

 Analyze the Process of Conciliation in Alternate Dispute Resolution (ADR).

Ø Process of Conciliation under the Arbitration and Conciliation Act 1996.

Part 3 of the Arbitration and Conciliation Act 1996 discusses the process of conciliation, which is an alternative method of resolving disputes outside of court. Conciliation is governed by the provisions outlined in the Arbitration and Conciliation Act, 1996 (26 of 1996), as defined in Wharton’s Law Lexicon.

1.     Step 1: Commencement of Conciliation Proceedings

Section 62 of the Act addresses the initiation of conciliation proceedings. To begin the process, one party must send a written invitation to the other party. The conciliation proceedings can only proceed if the other party accepts the invitation. If no response is received within 30 days of sending the invitation, it will be deemed non-acceptance.

2.   Step 2: Appointment of Conciliators

Once the parties have agreed to engage in conciliation proceedings, appointing a conciliator is next. Section 64 covers the appointment of conciliators. If the parties agree, they can appoint a single conciliator. If the parties opt for two conciliators, each party will appoint one. In the case of three conciliators, each party will appoint one conciliator, and the parties together can agree upon a third conciliator who will act as the presiding conciliator.

3.   Step 3: Submission of Written Statements to the Conciliator

The conciliator may request both parties to provide written statements detailing the relevant facts pertaining to the case. Both parties must submit their written statements to the conciliator. Additionally, the parties are required to exchange their written statements with each other.

4.   Step 4: Conduct of the Conciliation Proceedings

Sections 67 (3) and 69 (1) describe the conduct of conciliation proceedings. The conciliator has the discretion to communicate with the parties through written or oral means. They can choose to meet with the parties collectively or separately. The conduct of the proceedings will be tailored to suit the case’s specific circumstances.

5.    Step 5: Administrative Assistance

Section 68 of the Act addresses the option of seeking administrative assistance. The parties or the conciliator may seek assistance from an institution or individual if necessary. However, the consent of the parties is required to engage in such administrative assistance.

Ø Principles of Process of Conciliation

The principles of conciliation as discussed under the Arbitration and Conciliation Act are:

1.     Independence and Impartiality (Section 67 (1)

The conciliator must maintain independence and impartiality throughout the conciliation process. They should assist the parties unbiasedly and fairly while striving to reach an amicable settlement.

2.   Fairness and Justice (Section 67 (2)

The conciliator should adhere to principles of objectivity, fairness, and justice. This involves considering the rights and obligations of the parties, relevant trade practices, and the circumstances surrounding the dispute, including any prior business dealings between the parties.

3.   Confidentiality (Sections 75, 70, Provision)

All matters relating to the conciliation proceedings are to be treated as confidential by the conciliator and the parties involved. If a party provides information with the condition of confidentiality, the conciliator must not disclose that information to the other party without consent.

4.   Disclosure of Information (Section 70)

When the conciliator receives information regarding any facts related to the dispute from one party, they should disclose the substance of that information to the other party. This allows the other party to provide an appropriate explanation.

5.    Cooperation of Parties with Conciliator (Section 71)

The parties are expected to cooperate in good faith with the conciliator. This includes submitting written materials, providing evidence, and attending meetings as requested by the conciliator.

6.   Rules of Procedure (Section 66)

The conciliator is not bound by the procedural rules outlined in the Code of Civil Procedure, 1908, or the Indian Evidence Act, 1872. However, while not strictly bound by technical procedural rules, the conciliator should still uphold the principles of natural justice.

7.    Place of Meeting (Section 69 (2)

The parties can agree upon the location for meetings with the conciliator. In the absence of such an agreement, the conciliator will determine the meeting place after consulting with the parties, considering the circumstances of the conciliation proceedings.

8.   Communication between Conciliator and Parties (Section 69 (1)

The conciliator may invite the parties to meet, communicate with them orally or in writing, and may choose to engage with the parties collectively or separately as necessary.

Ø Termination of Conciliation Proceedings – Section 76

Section 76 of the Arbitration and Conciliation Act provides four ways in which conciliation proceedings can be terminated:

1.     Termination by Signing of Settlement Agreement (Section 76 (a)

Conciliation proceedings end when the parties involved sign a settlement agreement. The date of termination is considered to be the date on which the settlement agreement is signed.

2.   Termination by Conciliator’s Declaration (Section 76 (b)

The conciliation proceedings can be terminated if the conciliator declares in writing that further efforts at conciliation are no longer justified. The date of termination is the date of the conciliator’s declaration.

3.   Termination by Written Declaration of Parties (Section 76 (c)

The parties have the authority to terminate the conciliation proceedings by providing a written declaration to the conciliator stating that they wish to end the proceedings. The date of termination is the date of the declaration.

4.   Termination by Party’s Written Declaration to Other Party and Conciliator (Section 76 (d)

A party can unilaterally terminate the conciliation proceedings by sending a written declaration to both the other party and the conciliator, expressing their intention to terminate the proceedings. The date of termination is the date of the declaration.

 

References:

1. Characteristics of Alternate Dispute Resolution (ADR) and Advantages and Disadvantages of Alternate Dispute Resolution (ADR)

 2. Legal Education in India: Challenges, Innovations, and a Vision

3. Sources of Law

4. Salient features of Arbitration and Conciliation Act, 1996.

5. Disscuss the Differences between Arbitration and Conciliation

6. What type of Matter Cannot be subject to ADR (Alternative Dispute Resolution)

7. Discuss the historical background and objectives of the Arbitration and Conciliation Act, 1996

8. What is an Interim Measure by Court Under Section 9 of the Arbitration and Conciliation Act 1996

9. Differences between Arbitration and Mediation

10. Difference between Mediation and Conciliation

11. Difference between Arbitration and Conciliation

12. Difference between Arbitration and Negotiation

13. Discuss the State Legal Service authority and the Legal Service Authority Act

14. Compare and contrast Negotiation, Conciliation, and Arbitration as forms of Alternate Dispute Resolution (ADR)

15. Discuss the Role of Negotiation within the framework of Alternate Dispute Resolution (ADR)

 

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