1. What is ADR?

Advantages & Disadvantages of ADR System

 The word “dispute” means “disagreement” and the word “resolution” means “the
action of solving something.”
 Alternative dispute resolution is a form of agreement.
 Alternative dispute resolution consists of a variety of ways to dispute resolution. In
many of these approaches there is a neutral individual who assists disputing parties
in resolving their disagreements.
 ADR increases the parties’ opportunities to resolve disputes prior to or during the use
of formal administrative procedures and litigation.
 It is not intended to replace the traditional approaches and it can provide long-term
solutions to employee-employer conflicts through stakeholder’s participation and
buy-in.

Definition of ADR

 Alternative Dispute Resolution includes alternative methods of helping people

resolve legal problems before going to court. There is an involvement in of an
independent third person, called a “neutral” who tries to help resolve or narrow
the areas of conflict in ADR.
 Alternate Dispute Resolution means the wide variety of methods by which
conflicts and disputes are resolved other than through litigation.
 Alternative Dispute Resolution refers to any means of settling disputes outside of
the courtroom.
 ADR typically includes early neutral evaluation, negotiation, conciliation,
mediation, and arbitration.
 As growing court queues, rising costs of litigation, and time delays continue to
plague litigants, more states have begun experimenting with ADR programs. Some
of these programs are voluntary; others are mandatory.

Types of ADR:

There are four forms of ADR:

1. Mediation
2. Arbitration
3. Negotiation
4. Conciliation

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Mediation

 The most popular form of ADR is mediation.

 Mediation is a process of dispute resolution focuses on effective communication
and negotiation skills.
 The mediator role is to help the parties in communicating and negotiating more
effectively, thereby enhancing their ability to reach a decision.
 It is not the mediator’s role to adjudicate the issues in dispute and indeed the
mediator has no right to do so.
 Mediation is not a process to force compromise, although compromise is an
element of the process. Each party’s limitations are respected, and a party is only
expected to make a change in its approach to the problem if it becomes convinced
that it is reasonable to do so.

The advantages of mediation are many. Some of the benefits mediation offers include:

 Effective Process: Mediation generally enjoys an 80%-85% success rate.

 Better Results: The resolution is created by the parties.
 Speed: Mediation is focused in resolving the problem quickly.
 Cost: Mediation is not expensive.

Arbitration

Arbitration is a process for the resolution of disputes on a private basis through the
appointment of an arbitrator, an independent, neutral third person who hears and
considers the qualities of the dispute and renders a final and binding decision called an
award.

The process is similar to the litigation process as it involves adjudication, however, the
parties select their arbitrator and the manner in which the arbitration will proceed. For
example, if the dispute is fairly straightforward and does not involve any factual
questions, the parties may agree to waive a formal hearing and provide the arbitrator
with written submissions and documentation only, called a document only arbitration,
whereas in other cases the parties may wish a full hearing. Therefore, the parties create
their own adjudicatory forum which is tailor made to the particular needs of the parties
and the nature of the dispute.

The advantages of arbitration over court adjudication can include the following:

 Expertise of the Decision-Maker: The parties can choose an arbitrator who has
expert knowledge of the law, business or trade in which the dispute has arisen.
 Low Cost: Arbitration is not expensive if the process is kept simple.
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  Speed: Arbitration can be arranged quickly and does not take time as long as
litigation.

Negotiation

The simplest form of Alternative Dispute resolution. Where both parties have a dispute,
they can negotiate a solution themselves. There is no third party of middle man who
facilitates the resolution process or imposes a resolution.

Conciliation

This is very much similar to mediation where a neutral third party helps the parties resolve
their dispute. The conciliator plays a more active role in the process. Conciliation is not
legally binding on the parties.

Advantages of ADR

 Reduced time in dispute- It takes less time to reach a final decision.

 Reduced costs in relating to the dispute resolution- It requires less money i.e. it is
cheap.
 Flexibility-Parties have more flexibility in choosing what rules will be applied to
the dispute. They have the freedom to do so.
 Produce good results- settlement rates of up to 85 percent.
 Improved satisfaction with the outcome or manner in which the dispute is
resolved among disputants.
 Increased compliance with agreed solutions.
 A single procedure – Parties can agree to resolve in a single procedure a dispute
involving intellectual property.
 Party autonomy- Because of its private nature, ADR affords parties the
opportunity to exercise greater control over the way their dispute is resolved than
would be the case in court litigation. In contrast to court litigation, the parties
themselves may select the most appropriate decision-makers for their dispute. In
addition, they may choose the applicable law, place and language of the
proceedings. Increased party autonomy can also result in a faster process, as
parties are free to devise the most efficient procedures for their dispute. This can
result in material cost savings.
 Neutrality– ADR is neutral to the law, language and institutional culture of the
parties, thereby avoiding any home court advantage that one of the parties may
enjoy in court-based litigation.

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 Confidentiality- ADR proceedings are private. Thereby, the parties can agree to
keep the actions confidential. This allows them to focus on the merits of the
dispute without concern about its public impact.
 Finality of Awards- Unlike court decisions, which can generally be contested
through one or more rounds of litigation, arbitral awards are not normally subject
to appeal.
 Enforceability of Awards- The United Nations Convention for the Recognition and
Enforcement of Foreign Arbitral Awards of 1958, known as the New York
Convention, generally provides for the recognition of arbitral awards on par with
domestic court judgments without review on the merits. This greatly facilitates
the enforcement of awards across borders.
 Preserves relationship- Helps people cooperate instead of creating one winner or
one loser.

Disadvantages of ADR

Some disadvantages of alternative dispute resolution are:

 It can be used as a stalling tactic.

 Parties are not compelled to continue negotiations or mediation.
 Does not produce legal precedents.
 Exclusion of pertinent parties weakens final agreement.
 Parties may have limited bargaining power. Parties do not have much of a say.
 Little or no check on power imbalances between parties.
 May not protect parties’ legal rights. The rights of the parties may not be
protected by alternative dispute resolution.
 Your case might not be a good fit– Alternative dispute resolutions resolve only
issues of money or civil disputes. Alternative dispute resolution proceedings will
not result in injunctive orders. They cannot result in an order requiring one of the
parties to do or cease doing a particular affirmative act.
 There are limits to the discovery process– You should also be aware that you are
generally preceding without the protections offered parties in litigation, such as
those rules governing discovery. Courts generally allow a great deal of latitude in
the discovery process, which you will not have in an alternative dispute resolution.
 There is no guaranteed resolution. With the exception of arbitration, alternative
dispute resolution processes do not always lead to a resolution.
 Arbitration decisions are final. With few exceptions, the decision of a neutral
arbitrator cannot be appealed. Decisions of a court, on the other hand, usually can
be appealed to a higher court.
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  Participation could be perceived as weakness. While the option of making the
proceeding confidential addresses some of this concern, some parties still want to
go to court “just on principle.”
 The case might not be a good fit-Alternative dispute resolution generally resolve
only issues of money or civil disputes.
 There are limits to the discovery process-One should also be aware that he is
generally proceeding without the protections offered parties in litigation, such as
those rules governing discovery.

2. Need for ADR:

 Suitable for multi-party disputes
 Lower costs, in many cases its free when involving consumers
 Likelihood and speed of settlements
 Flexibility of process
 Parties' control of process
 Parties' choice of forum
 Practical solutions
 Wider range of issues can be considered
 Shared future interests may be protected
 Confidentiality
 Risk management
 Generally, no need for lawyers

3. Adversarial legal system:

An adversarial legal system brings cases to the court with two opposing sides presenting
themselves before a neutral panel that can include a jury and a judge. Once both parties
have argued their cases, the panel will then determine the facts and the appropriate
actions to be taken.
Advantages:
a. It is seen as fair and less prone to abuse.
b. It properly observes the rights of the defending and prosecuting parties.
c. It allows both sides to support their positions.
d. It provides power to the police.
e. It does not promote bias.
f. It hears the stories from both sides.
Disadvantages:
 It obliges each side to contest with each other.

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  It might lead to injustice.
 It might result in judgments compelled by arguments, instead of evidence.
 It has issues with accessibility.
 It uses a tedious process.

4. Salient features of Arbitration & Conciliation Act 1996

i. Is an Indian Act (No. 26 of 1996) related to arbitration and conciliation of
disputes.
ii. It is effective from 16 Aug 1996
iii. An act to consolidate and amend the law relating to domestic arbitration,
international commercial arbitration and enforcement of foreign arbitral
awards as also to define the law relating to conciliation and for matters
connected therewith or incidental thereto.
iv. Arbitration is the reference of dispute between not less than two parties, for
determination, after hearing both sides in a judicial manner, by a person or
persons other than a court of competent jurisdiction.
v. The Act contains a Preamble, 86 sections and 3 schedules. The act is divided
into four parts.
1. Part I: Arbitration
2. Part II: Enforcement of certain foreign awards
3. Part III: Conciliation
4. Part IV: Supplement Provisions
vi. Comprehensive Statute: Incorporates domestic, international and inter-state
developments and arbitral awards
vii. Explanatory Code: The Act is explanatory and a complete code in itself.
viii. Curtailment of courts' power: Limited the power of court rather than restrict
the judicial power.
ix. Procedure: Provides detailed procedure and practice in hearings and
settlements of claims and defects.
x. Precise powers of courts: Takes assistance of courts only in specific matters.
xi. Power of Arbitrators: New code enhanced power of arbitrators in respect of
Arbitral Tribunals jurisdiction, competence of arbitrators to rule etc.
xii. International applicability: Interim award by international arbitral tribunals
such as ICC/ Court Arbitration at London

5. What is Mediation
 The most common types of Alternative Disputes Resolution is Mediation.

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  Mediation is a procedure in which two or more persons with the help of a
neutral mediator are able to find a mutual acceptable solution of their conflict.
 Mediation enables parties in conflict to discuss their underlying needs and
interests instead of just fight over legal rights and entitlements.
 It is a simple, voluntary, party centered and structured negotiation process,
where a neutral third party assists the parties in amicably resolving their
disputes by using specified communication and negotiation techniques.
 Mediation is a process where it is controlled by the parties themselves. The
mediator only acts as a facilitator in helping the parties to reach a negotiated
settlement of their dispute.

6. Mediation Advantages & Disadvantages

Advantages:
 Mediation is relatively inexpensive.
 Mediation is relatively swift. There is no dearth of mediators ready and willing to
assist parties whose goal is to try to settle a matter.
 Mediation is relatively simple. There are no complex procedural or evidentiary
rules which must be followed. While most would agree that a general rule of
fairness applies, the maximum penalty a party can impose for foul play is to walk
away from the mediation and take his chances in court.
 Mediation allows the parties to revise and adjust the scope of their conflict. In a
trial, initial pleadings and rules of procedure limit the issues which a party can
raise. In mediation, as circumstances change so can the topics up for discussion.
This increased flexibility makes it easier for negotiators to act as problem-solvers
instead of adversaries.
 Mediation allows for flexible solutions and settlements. The relief available in
court is usually based on pecuniary damages, and equitable relief is hard to come
by. In mediation, however, the parties can agree to a settlement requiring, or
restraining, action by one party which was not originally envisioned as something
beneficial to the other party.
 Settlements reached in mediation are more agreeable to both parties than court
judgments. Because any settlement arrived at through negotiation is necessarily
agreed to voluntarily by both parties, obligations under the agreement are more
likely to be fulfilled than obligations imposed by a court.

Disadvantages:

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  Mediation does not always result in a settlement agreement. Parties might spend
their time and money in mediation only to find that they must have their case
settled for them by a court. Opting for mediation, therefore, presents something
of a risk. Further, if mediation fails, much of a party’s “ammunition” might have
already been exposed to the opposing party, thereby becoming far less useful in
the ensuing trial.
 Mediation lacks the procedural and constitutional protections guaranteed by the
courts. The lack of formality in mediation could be a benefit, as noted above, or a
detriment. Mediation between parties of disparate levels of sophistication and
power, and who have disparate amounts of resources available, might result in an
inequitable settlement as the less-well positioned party is overwhelmed and
unprotected.
 Legal precedent cannot be set in mediation. Many discrimination cases, among
others, are brought with the intention of not only securing satisfaction for the
named plaintiff, but also with the hope of setting a new legal precedent which will
have a broader social impact. These cases are only “successful” if a high court
(usually the United States Supreme Court) hands down a favorable decision on the
main issue. Mediation is therefore not beneficial for such cases.
 Mediation has no formal discovery process. If one of the parties to a dispute
cannot fully address the case without first receiving information from the other
party, there is no way to compel disclosure of such information. The party seeking
disclosure must rely instead on the other party’s good faith, which may or may not
be enough.

7. Section 89 of the Code of Civil Procedure, which gives the Court the power to refer
the dispute for settlement or conciliation was introduced with a purpose of an
amicable, peaceful and mutual settlement between parties without the intervention
of the court. However, the issue is that even after more than a decade of its
implementation, the provision provided for ADR under Section 89 suffers from many
anomalies. The constitutional validity of this section was upheld but the frequency with
which ADR is utilized for resolution of disputes remains minute, which arises due to
lack of knowledge about the same or on account of the reluctance of the parties.

8. Who is mediator?

 A person who conducts mediation.

 A mediator is usually a lawyer, or retired judge, but can be a non-
attorney specialist in
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 the subject matter (like child custody) who tries to bring people and their dispute
s to early resolution through a conference.
 The mediator is an active participant in the discussions & attempts to work out a
solution,
 One who interposes between two contending parties, with their consent, for the
purpose of assisting them in settling their differences.
 The Mediator is a neutral third party who assists the disputing parties in their
quest for a settlement. Even though the parties are the ones who get to decide
the outcome of the mediation, it is the mediator who first initiates the meeting,
discuss of the problem and then assists the parties to find possible solutions

9. Qualities of Mediator?

a. Trust: A mediator is nothing but a ‘bicholia’ or a “go in between”, whose office is used
by the two parties in a dispute to resolve their dispute. One can work as a mediator
so long as he or she enjoys the trust of the parties. parties have no choice in choosing
their judge but the parties can pick a mediator only when they have a trust in the
mediator or they have a reason to believe that they can trust him. In case of a
mediator on the other hand these close door one to one meetings are his most
important tool to discover the real interest of the parties. The parties communicate
to the mediator in confidence that their secrets will not be revealed to others unless
he or she himself or herself so desires. All this is possible only and only when they
completely trust that the mediator will not act in any one’s favor particularly but will
work in the best interest of both the parties.

b. Neutrality : The faith reposed by the parties in the mediator at the time of his
appointment needs to be maintained not only till the entire proceeding is over but
also there after. This faith should not only exist but also seen to be existing all the
time. Neutrality is that overt act or those overt acts of a mediator, which give reason
to the parties to believe that they can continue to have faith in him. A mediator should
never give an impression that he is leaning in favor of any of the parties. His conduct
should reflect that he is paying equal respect to both the parties; he is paying equal
attention to both the parties; he is not extraordinarily respectful to one of the parties;
he is not extraordinarily chatty with one of the parties and so on. This neutrality
should get reflected not just inside the mediation room but also outside. It is the
neutrality, which reinforces trust.

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c. Confidentiality: One of the reasons that the parties opt for mediation is that they do
not either want to wash dirty linen in public or if it is a trade dispute they don’t want
others to know their trade secrets or they know that adjudication of dispute in the
open forums like court may lead to their making their financial condition public. It is
an unwritten promise that a mediator would maintain confidentiality at all costs.
Confidentiality is just another facet of trust.

d. Listen patiently : When the parties walk into mediation they carry a lot of emotional
baggage. They look for an opportunity to offload that from their chest. They look for
an opportunity that some one hears them. Most of the time courts do not have the
time to hear the parties nor the inclination to hear what is not an issue. Mediation
offers them this opportunity. Once a party goes with a feeling that the he has been
heard to his satisfaction then a mediator may consider he has won half of the battle.
It is this free talk of the parties, which takes a mediator to the real dispute or core of
the dispute or the underlying interest of the parties.

e. Look dignified; dress appropriately: It is the appearance of the mediator, which

conveys the first impression to the parties. They should have a feeling that they are
dealing with a person who is here to do business. He is serious about his job. If the
conduct of the mediator is not dignified he is not likely to earn the respect of the
parties. It is the respect for the mediator, which builds the trust of the parties in the
mediation. Yet it is important he should not sit with a stiff neck with a detached look,
so as to convey that he is indifferent to what is going around him. Dressing up is yet
another aspect of looking dignified. One, however, needs to be careful that he is not
overdressed as overdressing itself creates barriers of its own in the effective flow of
information between the mediator and the parties.

f. Do not try to grab all the credit: A mediator may be the chief architect of the final
settlement between the parties but still he should not take all the credit for it.
Conceptually a mediator only mediates to help the 4 parties to reach a negotiated
settlement. He, therefore, should give credit to the parties to have settled the dispute
to get the best deal.

g. Punctuality: Stick to the timings. Discourage the postponement of the matter unless
it is necessary for finding the solution itself. Sometimes it is necessary to postpone the
matter because you want the parties to disengage, giving them time to cool off to 5
bring down the emotional quotient or reflect back on their positions or consult
someone like an elder member of the family before taking a final decision.
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h. Act within four corners of law: Mediation proceedings have the sanctity of law. It
gives a mediator the freedom to adopt procedure of his/her own to resolve the
dispute between the parties. It must be remembered all the time that a mediator does
not sit like a Kangaroo court. He cannot force his way through, which can be said to
be against the norms of the civil society and standard principles of law. A mediator
cannot be a party to a settlement, which is against the public policy. A mediator
cannot follow a procedure, which no reasonable man may approve of. A mediator
should never lose sight of the fact that the settlement arrived before him can be
challenged if it is patently against the law or the public policy or he adopted the
procedure which no reasonable person would ever undertake.

i. Knowledgeable: Once the negotiations are over a mediator is required to help the
parties draw the terms of settlement. These settlements should be such that they
would not fall apart once they are tested on the touchstone of law. This can only be
achieved if the mediator has the knowledge of the subject matter of the dispute and
the law related to it.

j. Optimism: optimism is a reflection of his attitude that in the given facts of the case
he will be able to find creatively solutions acceptable to both the parties to the
dispute. It shows up as a self-belief in his skills that he will ultimately make the parties
see as to where lay their benefit. It is a part of his self-confidence portrayed in his
communication skills by which he can continue to make parties focus on the positive
aspects of deliberations and overlook the negative ones. An optimism of this nature
promotes rational thinking in the overall environment of the mediation proceedings
and leads to positive results.

10. Duties and Responsibilities of a Mediator?

A mediator's duties are:

 To conduct a mediation in a fair and unbiased manner;
 To decline or withdraw from a mediation if the mediator cannot remain impartial;
 To avoid a conflict of interest or an appearance of a conflict of interest during and
after a mediation;
 To make reasonable inquires to determine any potential conflicts;
 To maintain the confidentiality of a mediation;

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  To conduct the mediation in accordance with the procedures, the Code of
Mediation Procedure and the provisions of the Standards of Conduct for
Mediators.

The mediator's primary role is

 to act as a neutral third party who facilitates discussions between the parties.
 In addition, a mediator serves in an evaluative role when they analyze, assess the
issues, and engage in reality-testing.
 A mediator is neutral and they are not the agent of any party. In their role,
mediators do not offer prescriptive advice (e.g., "You should settle this case," or,
"Your next offer should be X.").
 Mediators also manage the interaction between the parties and encourage
constructive communication through the use of specialized communication
techniques.
 Finally, the mediator should restrict pressure, aggression and intimidation,
demonstrate how to communicate through employing good speaking and
listening skills, and paying attention to non-verbal messages and other signals
emanating from the context of the mediation and possibly contributing expertise
and experience.
 The mediator should direct the parties to focus on issues and stay away from
personal attacks

11. Preparation for Mediation

 The parties' first role is to consent to mediation, possibly before preparatory

activities commence. Parties then prepare in much the same way they would for
other varieties of negotiations. Parties may provide position statements, valuation
reports and risk assessment analysis. The mediator may supervise/facilitate their
preparation and may require certain preparations.
 Choose an appropriate mediator, considering experience, skills, credibility, cost,
etc. The criteria for mediator competence is under dispute. Competence certainly
includes the ability to remain neutral and to move parties though various impasse-
points in a dispute. The dispute is over whether expertise in the subject matter of
the dispute should be considered or is actually detrimental to the mediator's
objectivity.

 Preparatory steps for mediation can vary according to legal and other
requirements, not least gaining the willingness of the parties to participate.
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  In some court-connected mediation programs, courts require disputants to
prepare for mediation by making a statement or summary of the subject of the
dispute and then bringing the summary to the mediation. In other cases,
determining the matter(s) at issue can become part of the mediation itself.

 Consider having the mediator meet the disputants prior to the mediation meeting.
This can reduce anxiety, improve settlement odds and increase satisfaction with
the mediation process.

 Ensure that all participants are ready to discuss the dispute in a reasonably
objective fashion. Readiness is improved when disputants consider the viability of
various outcomes.

 Provide reasonable estimates of loss and/or damage.

 Identify other participants. In addition to the disputants and the mediator, the
process may benefit from the presence of counsel, subject-matter experts,
interpreters, family, etc.

 Secure a venue for each mediation session. The venue must foster the discussion,
address any special needs, protect privacy and allow ample discussion time.

 Ensure that supporting information such as pictures, documents, corporate

records, pay-stubs, rent-rolls, receipts, medical reports, bank-statements, etc., are
available.

 Have parties sign a contract that addresses procedural decisions, including

confidentiality, mediator payment, communication technique, etc.

12. Code of Conduct

Common elements of codes of conduct include:
• informing participants as to the process of mediation
• adopting a neutral stance
• revealing any potential conflicts of interest
• maintaining confidentiality within the bounds of the law
• mindfulness of the psychological and physical wellbeing of all participants
• directing participants to appropriate sources for legal advice
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• engaging in ongoing training
• Practicing only in those fields in which they have expertise.

13. What is conciliation?

 Conciliation is an alternative out-of-court dispute resolution instrument. Like
mediation, conciliation is a voluntary, flexible, confidential, and interest based
process. The parties seek to reach an amicable dispute settlement with the
assistance of the conciliator, who acts as a neutral third party.
 Conciliation is the process of bringing opponents to harmony. It is the activity of
bringing together the parties in a dispute so that the dispute can be settled.
 Conciliator is the person who takes up the task of bringing the parties into
harmony.
 Conciliation can be applied to disputes arising out of legal relationship, contractual
or not, and to all proceedings relating thereto.
 Conciliation is the settlement of disputes through discussions without litigations.
It is a process by which discussion between parties are made through the
participation of conciliator.
 It is a process to help and assist the parties to reach an amicable settlement on
their disputes.
 The conciliator adopts his own method to settle the disputes and it need not be a
strict legal procedure.
 It can be resorted to without any agreement.
 The acceptance of the other party is mandatory for the offer made by the first
party.

Different Kinds of Conciliation

1. Facilitative - He does not gives opinion but merely assist the parties to clarify their
communications, interests and priorities.
2. Evaluative - He gives his opinion on the merits of the issues so that the parties
approach for settlement.
3. Court Annexed Conciliation - Here the judges, lawyers and litigants become
participants therein, thereby giving them a feeling that negotiated settlement is
achieved by all the three of them.
4. Voluntary Conciliation - Here the parties are free to make use of conciliation under
their free will
5. Compulsory Conciliation - If voluntary conciliation is very unlikely and parties do
not agree even to meet each other for direct negotiations, then the procedure is
made compulsory. It is mostly seen in Labor cases.
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 Advantages of Conciliation:

1. Held in private, Confidentiality is maintained.

2. Informal, Simple procedures are followed.
3. There is no time delay.
4. The expenses are very low when compared to others
5. No lengthy proceedings, time and money savings.
6. The conciliator is a technical person and his decision will be superior compared to
civil court judge
7. There is consent by both the parties and therefore the settlement is final and
enforceable.

Disadvantages of Conciliation:

1. He is not a legally qualified person

2. Since simple procedure is followed there is high probability of injustice being
delivered.

14. Various stages of conciliation

Procedure
 Either party to the dispute can commence the conciliation process.
 When one party invites the other party for resolution of their dispute through
conciliation, the conciliation proceedings are said to have been initiated.
 When the other party accepts the invitation, the conciliation proceedings
commence.
 If the other party rejects the invitation, there are no conciliation proceedings
for the resolution of that dispute.
 Generally, only one conciliator is appointed to resolve the dispute between
the parties. The parties can appoint the sole conciliator by mutual consent. If
the parties fail to arrive at a mutual agreement, they can enlist the support of
any international or national institution for the appointment of a conciliator.
There is no bar to the appointment of two or more conciliators. In conciliation
proceedings with three conciliators, each party appoints one conciliator. The
third conciliator is appointed by the parties by mutual consent.
 Unlike arbitration where the third arbitrator is called the Presiding Arbitrator,
the third conciliator is not termed as Presiding conciliator. He is just the third
conciliator.

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  The conciliator is supposed to be impartial and conduct the conciliation
proceedings in an impartial manner.
 He is guided by the principles of objectivity, fairness and justice, and by the
usage of the trade concerned and the circumstances surrounding the dispute,
including any previous business practices between the parties.
 The conciliator is not bound by the rules of procedure and evidence. The
conciliator does not give any award or order.
 He tries to bring an acceptable agreement as to the dispute between the
parties by mutual consent.
 The agreement so arrived at is signed by the parties and authenticated by the
conciliator. In some legal systems, the agreement so arrived at between the
parties resolving their dispute has been given the status of an arbitral award.
If no consensus could be arrived at between the parties and the conciliation
proceedings fail, the parties can resort to arbitration.

15. Conciliation under ID Act, 1947

Section 4 of Industrial Disputes Act, 1947 authorizes the appropriate government to

engage such number of persons as may be deemed necessary by notification in the
Official Gazette as conciliation officers, for discharging the responsibility of mediating in
and promoting the settlement of industrial disputes.

Section 12 of Industrial Disputes Act, 1947 provides duties of conciliation officers.

The conciliation officers do not have the authority to impose upon the parties a solution
of or to dispute.

The contract shall clearly draft by setting out the conciliation process not limited to as
below:

 Scope and applicability

 Panel of Conciliators
 Appointment and Number of Conciliators
 Commencement of Conciliation proceedings
 Procedure to be followed by the Conciliation officers
 Role of the Conciliation officers
 Venue for Conciliation Proceedings
 Time Frame
 Remuneration & Cost
 Settlement Agreement

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  Termination of Conciliation proceedings

The Conciliation proceedings are concluded in the following manner:

 Where conciliation ended in settlement – the date on which settlement is signed

by the parties to the disputes or
 Where conciliation ended in failure, the date on which the appropriate Govt
receives the failure report of a conciliation officer. or
 When a reference is made to a Labour Court/Industrial Tribunal during the
pendency of conciliation proceedings.

In the case of non-settlement or failure of conciliation, copies of failure report under

Section 12 (A) of Industrial Disputes Act 1947 are required to be sent to the parties to the
dispute.

If the party raising the dispute fails to turn-up without reasonable cause, the case may be
closed under intimation to it. If the opposite party fails to turn-up, in spite of having been
given reasonable no. of opportunities, an adverse inference may be drawn, and the case
is proceeded with on ex-parte basis

16. Conciliation under Family courts act, 1984

The preamble to the family courts act, 1984 enacted by the Indian parliament laws
down as follows:
“An Act to provide for the establishment of Family Courts with a view to promote
conciliation in, and secure speedy settlement of disputes relating to marriage and
family affairs and for matters connected therewith”
Section 9 of the said act makes it a duty of the court to make efforts for a settlement.
It shall be worthwhile to note that the legislative intent and thought behind
enactment of the said act was to provide only legal remedy for settlement of family
disputes but ensure that estranged families avail of the services of professional and
trained mediators who may provide counselling and easier settlement of disputes.
Thus, this enactment can be termed as a wholesome legislation on reconciliatory
modes in family law disputes in Indian matrimonial disputes.
Hindu Marriage Act 1955
Decree in Proceedings—Section 23:
Section 23 lays down certain principles for the guidance of the court and also the
conditions on the satisfaction of which, the court may pass a decree in the
proceedings under the Act “whether dependend or not”.

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Sub-section (2) however enjoins upon the court a duty to make every endeavor in the
first instance to bring about reconciliations between the parties in every case where
it is possible to do so consistently with the nature and circumstances of the case. Sub-
section (1) lays down that only after the court is satisfied with the existence of the
conditions mentioned in sub-clauses (a) to (e). The court shall decree the relief prayed
for, but not otherwise. The petitioner is required to prove those grounds strictly upon
which he relies, and it makes no difference whether the proceedings is defended or
not.

Reconciliation—Section 23 (2):
The Amendment Act of 1976 has cast a duty on the courts to make an endeavor to
bring about a reconciliation between the parties to the marriage. The Act has
introduced the principle that a broken marriage can be treated like other civil wrong.
Taking a fatherly interest in their welfare, it is desirable that efforts for reconciliation
should be made in the beginning of the proceedings, but the provisions of law will be
satisfied if the efforts have been made before the final stage of the case.

The words ‘in the first instance’ only denote the court must make endeavor for
reconciliation before granting relief. Where in a case reconciliation effort were not
made, the case could be remanded with the direction to make efforts for bringing
about reconciliation.

In case of a petition for divorce on the grounds of conversion, unsoundness of mind,

virulent form of leprosy, communicable form of veneral disease, renunciation of the
world or untraceability of one of the parties to marriage there is no duty cast on the
courts to make an endeavor to bring about a reconciliation between the parties for
obvious reasons.

Sub-section (3) of Section 23 further enjoins the courts to adjourns the proceedings
and refer the matter to any person named by the parties or to any person nominated
by it, to bring about reconciliation between the parties to marriage. The court could
dispose off the proceedings thereafter having due regard to the report of the
conciliation.

According to a judgment of Delhi High Court, “though the provision does exist, the
practical experience is that there is in fact no proper working of said provision. The
reason is twofold: (1) The inherent constraint of the infra-structure of the Civil Court
which deals with such matters of family law; (2) the absence of any indication cither
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in the statute or in the rules or any of the directions issued by this court, providing
identifiable set of persons or organizations to whom matter may be referred.

Arbitration & Conciliation Act

Procedure of conciliation
1) Commencement of the conciliation proceedings [Section 62]-
The conciliation proceeding is initiated by one party sending a written invitation to
the other party to conciliate. The invitation should identify the subject of the dispute.
Conciliation proceedings are commenced when the other party accepts the invitation
to conciliate in writing. If the other party rejects the invitation, there will be no
conciliation proceedings. If the party inviting conciliation does not receive a reply
within thirty days of the date he sends the invitation or within such period of time as
is specified in the invitation, he may elect to treat this as rejection of the invitation to
conciliate. If he so elects he should inform the other party in writing accordingly.

2) Submission of Statement to Conciliator [Section 65] –

The conciliator may request each party to submit to him a brief written statement.
The statement should describe the general nature of the dispute and the points at
issue. Each party should send a copy of such statement to the other party. The
conciliator may require each party to submit to him a further written statement of his
position and the facts and grounds in its support. It may be supplemented by
appropriate documents and evidence. The party should send the copy of such
statements, documents and evidence to the other party. At any stage of the
conciliation proceedings, the conciliator may request a party to submit to him any
additional information which he may deem appropriate.

3) Conduct of Conciliation Proceedings [Section 69(1),67(3)]-

The conciliator may invite the parties to meet him. He may communicate with the
parties orally or in writing. He may meet or communicate with the parties together or
separately. In the conduct of the conciliation proceedings, the conciliator has some
freedom. He may conduct them in such manner as he may consider appropriate. But
he should take in account the circumstances of the case, the express wishes of the
parties, a party’s request to be heard orally and the need of speedy settlement of the
dispute.

4) Administrative assistance [S. 68]-

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 Section 68 facilitates administrative assistance for the conduct of conciliation
proceedings. Accordingly, the parties and the conciliator may seek administrative
assistance by a suitable institution or the person with the consent of the parties.

17. Qualities and duties and Role of conciliator

Qualities of Conciliator

Unlike mediation, the goal of conciliation is not to reach a settlement that pleases and
accommodates both parties, but rather convinces the disputed parties to make
concessions in the name of resolving the dispute. Therefore, the conciliator, serving
as the primary means of communication, must identify the objective of each side and
act as their advocate to the other side. Once they have reached an objective
perspective and a working knowledge of the dispute, they can begin the process of
seeking concessions to resolve the dispute. The conciliator first resolves the finer
points of the dispute before moving on to larger issues that will require significant
compromise. By eliminating the smaller sources of conflict, the conciliator has
brought the two sides closer to an agreement, which increases the incentive of the
parties to compromise. Mediators cannot enforce a settlement, that parties must be
persuaded to accept the agreement and abide by it.

Duties of Conciliator

1. The conciliator shall assist the parties in an independent manner thereby helping
the parties to reach an amicable settlement.
2. 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 to be considered.
3. The conciliator shall consider the rights and obligations of the parties and the
previous relations between the parties.
4. 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.
5. 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.
6. The conciliator has a duty to keep all matters relating to the proceedings
confidential.

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Role of a conciliator
Section 67 in THE ARBITRATION AND CONCILIATION ACT, 1996
1. The conciliator assists the parties in an independent and impartial manner in their
attempt to reach an amicable settlement of their dispute.
2. The conciliator will 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.
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.
4. 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 therefor.

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