BROADLY SPEAKING: CONCILIATION- THE LESSER USED ADR

ALTERNATIVE DISPUTE RESOLUTION

In the words of Abraham Lincoln, “The normal victor is often a real loser in fees, expenses and waste of time, convince your neighbors to negotiate, Discourage litigation”

The term alternate dispute resolution refers to a remedy that deals with the promotion of “access to justice” by avoidance of vexation, expense, and delay. The term “alternate dispute resolution” incorporates a comprehensive variety of dispute resolving mechanisms that are suitable substitutes for the full-scale court process. The genesis of ADR has a two-fold mechanism; it focuses on facilitated settlements by parties themselves based on a win-win approach and access to justice approach based on principles of natural justice and good conscience. It provides cheap, simple, quick, and accessible justice also aiming at reducing the burden of the over-burdened judicial body in India. The process of ADR is different from the court of law in a manner that adjudication by judicial body follows an adversarial procedure which does not aim at “resolution” of competing claims of members of society; it aims at uploading the one contention and rejecting the other, leaving the conflict un-remedied. Whereas the basic aim of AIR is that there should be a settlement between the parties & no party should feel aggrieved, ADR is a comprehensive radical innovation, which goes beyond the sphere of legal representation. The process of ADR was first used in India in 1971 in settling disputes in the steel industry.

CONCILIATION- AN EFFECTIVE MODE OF DISPUTE SETTLEMENT RESOLVING SYSTEM

Conciliation is an ADR process that empowers parties to resolve their own disputes through consensual oriented interaction by the disputants with the assistance of a neutral or impartial third party or institution that persuades the parties to arrive at an amicable settlement. It encompasses conflict avoidance, conflict management, and conflict resolution.

NATURE OF PROCESS

Conciliation falls within the spectrum of the non-binding process; it is a beneficial, consensus-based, and confidential process targeted at reaching a mutually beneficial arrangement. Conciliation incorporates the principle of self-determination and non-determination, it allows the elected conciliator to advise on the substantive matters through issuing formal recommendations and settlement proposals. Conciliation proceedings emphasize more the legal rights of parties than their underlying process.

ROLE OF CONCILIATOR- THE THIRD INSTITUTION

The conciliator or the third party is an active intervener who may have an advisory role in the content and outcome of the dispute. The appointment of Conciliators is generally based on mutual agreement of parties, where there are even numbers of conciliators; the conciliators may in their opinion appoint a presiding conciliator. A conciliator is liable to make suggestions that led to amicable settlement, grant expert advice, and use techniques that not only affect the likely terms of an agreement but also encourage all parties to settle. A conciliator may have the power to make a proposal, at any stage, but he or she may not be empowered to impose such proposals on the parties.

The Arbitration and Conciliation Act, 1996 is a consolidated act that prescribes a predictable legal framework for recourse to conciliation as a measure of dispute resolution by identifying a set of key principles to ensure a common minimum standard. However, it does not prescribe in detail the working of the procedure to hamper the flexibility of the process.

RECOURSE TO PROCESS

The resort to the process of conciliation may be voluntarily at the instance of the parties, the voluntary nature of conciliation is best validated by the approach that any party to the conciliation process may withdraw from the process at any stage without any justification. The voluntary nature of conciliation also inclines the parties to resort to this process before entering into the court of law. However, the process of conciliation can also be compulsorily referred by civil courts where the court is of opinion that the case can be time- effectively and cost-effectively be dealt with the ADR process.

THE INFREQUENT USE OF CONCILIATION

The massive involvement of arbitration and mediation in the resolution of international or national disputes is not unknown. Arbitration and mediation are the most used form of ADR in international institutions such as the United Nations, the dispute settlement of the World trade organization provide testimony to the same. The Indian courts at the district level and various specialized tribunals have inbuilt mediation center, the provision of arbitration proceedings is prevalent as an integral form of contracts where parties in case of future disputes resort to arbitration than recourse to a court of law. But why conciliation as a mode of resolution is not frequently adhered to?

• The nature of disputes that fall within the ambit of conciliation as an effective measure is less than the other existing forms of ADR.
• The non-binding nature of conciliation with the optional adoption of settlement award can also be a reason why parties seek other forms of resolutions.
• The non-compliance to the recommendation of the conciliator also is a factor that contributes to the unpopularity of conciliation.
• Conciliation is an unpopular and unknown process - what is not popular cannot be preferential by the citizens, Arbitration and mediation are well known alternative dispute resolution mechanisms and are highly incorporated by parties to amicably resort to their disputes.
• Lack of enforcement mechanism of conciliation is also a relevant factor why conciliation is less adhered to.
• Conciliation in India is exercised through the means of Lok Adalat and the subject matter of disputes is limited to auto accidents and family matters.
• The Lok Adalat has experienced a huge backlog of cases and some defendants agree to the process of conciliation with the motive of further delaying the litigation process.
• There is no defined time set in the process of litigation at which the decision is made by the parties, courts regarding referral to alternative dispute resolution.
• There is no provision of an appellate course of action.
• Conciliation is a less formal form of arbitration.
• The conciliation process usually incorporates the presence of lawyers and not the disputing parties themselves. This issue is specifically severe in writ proceedings where the government is the responding party and the counsel frequently claims to lack of authority to make decisions regarding terms of the settlement.
• India lacks the provision of obligatory resorting to ADR mechanisms in appropriate cases, the obligation to invoke ADR would be awareness in citizens regarding various forms of ADR.

CONCLUSION

It can be concluded that voluntariness in conciliation is the part of “effectiveness of conciliation” that leads to better results, higher satisfaction with process and outcomes, higher rates of settlement, and greater adherence to settlement terms. Recourse to the conciliation process due to its voluntary nature and economic- effectiveness seems to be an ideal means to reach an amicable settlement in case of conflict. The benefits of conciliation are undermined by the popularity of arbitration and mediation. Hence, awareness and appropriate legislative mechanisms must be enacted to ensure that the remedy of conciliation reaches the door of people to achieve speedy access to justice.

FAQs

1. What is conciliation? Discuss why conciliation is not sufficiently used in India as a process of dispute resolution?
2. “The main attraction of conciliation is the voluntary nature of its proceedings” Critically examine the statement and elaborate upon the nature, scope of conciliation proceedings?
3. Write a short note on the role of the conciliator in the process of conciliation?

[This article is written by Megha Solanki, Final Year Student B.A L.LB (Hons) of Fairfield Institute of Management & Technology.]

Notes for a law lecture- Home Book of American Quotations (by Dodd. Near), New York, 1967, p.226)

Dr. S. Muralidha, “Need for Alternatives to the Formal Legal System” in an international Conference on ADR, Conciliation, Mediation and Case Management organized by the Law Commission of India at New Delhi on May 3-4,2003.

Justice A.R Lakshmanan, “Alternative Dispute Resolution, Arbitration, Lok Adalat and Mediation”, All india Seminar on Judicial Reforms with special Reference to Arrears of Court Cases.