The arbitration and conciliation act 1996, section 61 to 81 Part III of this act, deals with the conciliation. Conciliation is forum to settle the dispute by the parties itself through a conciliator.
Meaning of Conciliation
Conciliation, is alternate dispute method that allows 2 parties to present there sides to a neutral 3rd party “the conciliator”, who then offers them a non binding resolution.
The parties can accept or reject the proposed resolution voluntary, As an ADR Alternative dispute resolution method it can be used in personal as well as business dispute.
Application and scope of Conciliation, Section 61 of Arbitration and conciliation act 1996
Agreed by Parties
(1) Save as otherwise provided by any law for the time being in force and unless the parties have otherwise agreed, this Part shall apply to conciliation of disputes arising out of legal relationship, whether contractual or not and to all proceedings relating thereto.
Conciliation not apply
(2) This Part shall not apply where by virtue of any law for the time being in force certain disputes may not be submitted to conciliation.
Commencement of conciliation proceeding section 62
Written invitation, conciliation
- The party initiating conciliation shall send to
the other party a written invitation to conciliate under this Part, briefly identifying the subject of the dispute.
Invitation accept, conciliation
Conciliation proceedings, shall commence when the other party accepts in writing the invitation to
conciliate.
Rejection of invitation, conciliation
In this settlement procedure If the other party rejects the invitation, there will be no conciliation proceedings.
Time of invitation reply
If the party initiating conciliation does not receive a reply within thirty days from the date on which he sends the invitation, or within such other period of time as specified in the invitation.
He may elect to treat this as a rejection of the invitation to conciliate and if he so elects, he shall inform in writing the other party accordingly.
Number of conciliator section 63 of Arbitration and conciliation act
Conciliator numbers
Section 63(1) arbitration and conciliation act There shall be one conciliator unless the parties agree that there shall be two or three conciliators.
Act jointly by conciliator
Arbitration and conciliation act Section 63(2) Where there is more than one conciliator, they ought, as a general rule, to act jointly.
Appointment of conciliator Section 64 arbitration and conciliation act
Arbitration and conciliation act, section 64(1) Subject to sub-section (2)
a) in conciliation proceedings, with one conciliator, the parties may agree on the name of a sole conciliator,
(b) in conciliation proceedings with two conciliators, each party may appoint one conciliator,
(c) in conciliation proceedings with three conciliators, each party may appoint one conciliator and the parties may agree on the name of the third conciliator who shall act as the presiding conciliator.
Section 64(2) arbitration and conciliation act, appointment of conciliator
Parties may enlist the assistance of a suitable institution or person in connection with the
appointment of conciliators, and in particular:-
(a) a party may request such an institution or person to recommend the names of suitable
individuals to act as conciliator, or
(b) the parties may agree that the appointment of one or more conciliators be made directly by
such an institution or person :
Provided that in recommending or appointing individuals to act as conciliator, the institution or
person shall have regard to such considerations as are likely to secure the appointment of an independent and impartial conciliator,
And, with respect to a sole or third conciliator, shall take into account the advisability of appointing a conciliator of a nationality other than the nationalities of the parties.
Submission of statements to conciliator, section 65 arbitration and conciliation act
Section 65(1) arbitration and conciliation act
The conciliator, upon his appointment, may
request each party to submit to him a brief written statement describing the general nature of the dispute and the points at issue. Each party shall send a copy of such statement to the other party.
Arbitration and conciliation act, section 65(2), written statement
- The conciliator may request each party to submit to him a further written statement of his position
- And the facts and grounds in support thereof,
- Supplemented by any documents and other evidence that such party deems appropriate.
- The party shall send a copy of such statement, documents and other evidence to the other party.
Section 65(3) arbitration and conciliation act
At any stage of the conciliation proceedings, the conciliator may request a party to submit to him
such additional information as he deems appropriate.
Explanation.—In this section and all the following sections of this Part, the term “conciliator” applies
to a sole conciliator, two or three conciliators, as the case may be.
Conciliator not bound by certain enactments, section 66 arbitration and conciliation act
The conciliator is not bound by the Code of
Civil Procedure, 1908 (5 of 1908) or the Indian Evidence Act, 1872 (1 of 1872). The main aim of conciliation is to short and solve the problem without any traditional court proceedings. In this parties are the only who set out there methods of solving their dispute which have arisen or may be arise by agreement or clause in their existence contract. But if the law involved such against the state, or any law or infringing other laws, then the common law applies.
Role of conciliator, section 67, arbitration and conciliation act
Assist the parties by conciliator
- The conciliator shall assist the parties in an independent and impartial manner in their attempt to reach an amicable settlement of their dispute.
Guided to Conciliator
(2) 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.
Conciliation proceedings by conciliator
(3) 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.
Conciliator, settlement of the dispute
The conciliator may, at any stage of the conciliation proceedings, make proposals for a settlement of the dispute.
Such proposals need not be in writing and need not be accompanied by a statement of the
reasons therefore.
Administrative assistance section 68 arbitration and conciliation act
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
Communication between conciliator and parties, section 69 arbitration and conciliation act
(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.
(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.
Section 70 arbitration and conciliation act 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.
Co-operation of parties with conciliator, Section 71 arbitration and conciliation act
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.
Suggestions by parties for settlement of dispute Section 72 arbitration and conciliation act 1996
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.
Settlement agreement Section 73 arbitration and conciliation act
Settlement through observations of parties by conciliator
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.
Settlement agreement
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.
Parties sign the settlement, arbitration and conciliation act
When the parties sign the settlement agreement, it shall be final and binding on the parties and persons claiming under them respectively.
Copy of settlement, arbitration
The conciliator shall authenticate the settlement agreement and furnish a copy thereof to each of
the parties.
Section 74 arbitration and conciliation act, Status and effect of settlement agreement
The settlement agreement shall have 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.
Arbitration and conciliation act section 75, Confidentiality
Notwithstanding anything contained in any other law for the time being in force, the conciliator and the parties shall keep confidential all matters relating to the conciliation proceedings.
Confidentiality shall extend also to the settlement agreement, except where its disclosure is necessary for purposes of implementation and enforcement.
Termination of conciliation proceedings Section 76 Arbitration and conciliation act
Section 76 of Arbitration and conciliation act 1996 state that, the conciliation proceedings shall be terminated
(a) by the signing of the settlement agreement by the parties, on the date of the agreement; or
(b) by a written declaration of the conciliator, after consultation with the parties, to the effect that
further efforts at conciliation are no longer justified, on the date of the declaration; or
(c) by a written declaration of the parties addressed to the conciliator to the effect that the
conciliation proceedings are terminated, on the date of the declaration; or
(d) by a written declaration of a party to the other party and the conciliator, if appointed, to the
effect that the conciliation proceedings are terminated, on the date of the declaration.
Section 77 arbitration and conciliation act, Resort to arbitral or judicial proceedings
The parties shall not initiate, during the conciliation proceedings, any arbitral or judicial proceedings in respect of a dispute that is the
subject-matter of the conciliation proceedings,
Except that a party may initiate arbitral or judicial
proceedings where, in his opinion, such proceedings are necessary for preserving his rights.
Costs, Section 78 arbitration and conciliation act 1996
1) Upon termination of the conciliation proceedings, the conciliator shall fix the costs of
the conciliation and give written notice thereof to the parties
(2) For the purpose of sub-section (1) “costs” means reasonable costs relating to
- (a) the fee and expenses of the conciliator and witnesses requested by the conciliator with the consent of the parties,
- (b) any expert advice requested by the conciliator with the consent of the parties,
- (c) any assistance provided pursuant to clause (b) of sub-section (2) of section 64 and section 68.
- (d) any other expenses incurred in connection with the conciliation proceedings and the settlement agreement.
(3) The costs shall be borne equally by the parties unless the settlement agreement provides for a
different apportionment. All other expenses incurred by a party shall be borne by that party.
Deposits, Section 79 arbitration and conciliation act
(1) The conciliator may direct each party to deposit an equal amount as an advance
for the costs referred to in sub-section (2) of section 78 which he expects will be incurred.
(2) During the course of the conciliation proceedings, the conciliator may direct supplementary deposits in an equal amount from each party.
(3) If the required deposits under sub-sections (1) and (2) are not paid in full by both parties within
thirty days, the conciliator may suspend the proceedings or may make a written declaration of termination of the proceedings to the parties, effective on the date of that declaration.
(4) Upon termination of the conciliation proceedings, the conciliator shall render an accounting to the parties of the deposits received and shall return any unexpended balance to the parties.
Role of conciliator in other proceedings, Section 80 arbitration act 1996
The Role of conciliator in other proceedings, Section 80 arbitration and conciliation act 1996 Unless otherwise agreed by the parties
(a) The conciliator shall not act as an arbitrator or as a representative or counsel of a party in any
arbitral or judicial proceeding in respect of a dispute that is the subject of the conciliation
proceedings,
(b) The conciliator shall not be presented by the parties as a witness in any arbitral or judicial
proceedings.
Section 81 arbitration act, Admissibility of evidence in other proceedings
The parties shall not rely on or introduce as
evidence in arbitral or judicial proceedings, whether or not such proceedings relate to the dispute that is the subject of the conciliation proceedings-
- (a) Views expressed or suggestions made by the other party in respect of a possible settlement of the dispute,
- (b) Admissions made by the other party in the course of the conciliation proceedings,
- (c) Proposals made by the conciliator,
- (d) The fact that the other party had indicated his willingness to accept a proposal for settlement made by the conciliator.