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THE CONCILIATOR: POWER AND DUTIES

Roshita Shrivastava

2nd Year, National Law Institute University, Bhopal

Introduction

“No civilised society leaves all issues of common concern to be resolved mutually between labour and management through a process of confrontation and conflict. The State shall lay down legislation to ensure a minimum protection of the interests of workers without waiting for trade unions to demand it.” [1]

-A. Flander

Hence, a step directed towards this was to recognize conciliation as a dispute resolution mechanism under the Industrial Disputes Act, 1947, furthered in the Arbitration and Conciliation Act, 1996.

Conciliation is a process whereby the conciliator incentivises the disputed parties to discuss their differences and facilitates them in arriving to a mutually accepted agreement within the legal framework of the Act. Conciliation as a mechanism is completely recommendatory in nature and procedure. Ergo, Wood mentioned, “the Conciliator is a catalyst aiming to lead the parties to an agreement without himself interfering in the actual decision making”.[2]

Who is a Conciliator?

A Conciliator plays a role of neutral adjudicator in facilitating the conciliation proceedings by assisting the parties with his knowledge, abilities and skills for a perspicuous flow of the process by initiating a positive dialogue, alleviate sour situations, clarify any misunderstandings, develop cordial environment necessary for solving the dispute harmoniously and most importantly help creating faith upon one another.

The conciliator shall win the confidence of both the parties, which will help him in better assistance as the parties would without any hesitation share their confidential information and thinking process with a belief that the same would not be disclosed to the opposite party without specific instruction in that regard.

Section  64 of the Act[3] 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.[4]

 

Duties of the Conciliator

  1. 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.[5]
  2. 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.[6][7]
  3. 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.[8]
  4. The conciliator with a mutual discussion with both the parties may decide the venue for the conciliation proceedings.
  5. The conciliator and the parties are duly bound to keep confidential all matters relating to conciliation proceedings. Similarly when a party gives a information to the conciliator on the condition that it be kept confidential, the conciliator should not disclose that information to the other party.[9]
  6. 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.[10]

Powers of a conciliator

  1. 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.[11]
  2. At any stage of the conciliation proceedings the conciliator may request a party to submit to him such additional information as he deems appropriate.[12]
  3. The conciliator is not bound by the Code of Civil Procedure, 1908 or the Indian Evidence Act, 1872.[13]
  4. 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.[14]
  5. 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.[15]
  6. The conciliator has the extensive power to choose and modulate the procedure to be followed by the procedural laws, albeit in consultation with the parties.
  7. The conciliator may, at any stage of the conciliation proceedings, himself make proposals for a settlement of the dispute.[16]

Conclusion

The conciliation, as a dispute resolution mechanism, is desirable as the parties willingly come together to amicably resolve the dispute by appointing a conciliator, who will assist them through the process, for instance, by bringing the parties together at a common venue, where they can settle their contentions via harmonious discussion, also maintain independence, fairness and justice throughout the process, etc. The conciliator apart from acting as a facilitator plays relatively direct role in the settlement of dispute, as it also evaluates the cases of both the parties and further recommends and advices on the various plausible solutions, directing the parties towards the most satisfactory common agreement.


[1] A. Flanders, The Fawley Productivity Agreements, (London: Faber and Faber), 1964.

[2] G. M. Kothari and A.G. Kothari, A Study of Industrial Law, 4th edn.Vol. 1, (Bombay: N.M. Tripathi Pvt.  Ltd.,1987), p. 62

[3] S. 64, Arbitration and Conciliation Act, 1996.

[4]  http://www.legalservicesindia.com/article/725/Principles-&-Procedure-of-conciliation-under-Arbitration-&-Conciliation-Act-1996.html

[5] S. 67(1), Arbitration and Conciliation Act, 1996.

[6] P.M. Bakshi, “Conciliation for Resolving Commercial Disputes”, 1 Comp. L. J. (Journal) 19 (1990).

[7] Haresh Dayaram Thakur v. State of Maharashtra, AIR 2000 SC 2281.

[8] S. 67(2), Arbitration and Conciliation Act, 1996.

[9] S. 70, Arbitration and Conciliation Act, 1996.

[10] S. 70, Arbitration and Conciliation Act, 1996.

[11] S. 65, Arbitration and Conciliation Act, 1996.

[12] S. 65, Arbitration and Conciliation Act, 1996.

[13] S. 66, Arbitration and Conciliation Act, 1996.

[14] S. 69, Arbitration and Conciliation Act, 1996.

[15] Sarvesh Chandra, “ADR: Is Conciliation the Best Choice” in P.C. Rao and William Sheffield ds.),Alternative Dispute Resolution 82 (Universal Law Publishing Company Pvt. Ltd., Delhi, 1997).

[16] S. 67, Arbitration and Conciliation Act, 1996.

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