Project Report On

Conciliation

Submitted To: Mrs. Jasmeet Gulati Bhinder UILS

Submitted by: Dilraj Singh 125/10

Introduction
Historically, methods used to settle disputes have ranged from negotiation, to courtroom litigation, and even to physical combat. The legal needs of countries, multinational companies, and ordinary people have changed over the last decade. When faced with a dispute, business people are learning that, whenever possible, it is more advantageous to reach practical and private agreements than to fight for years and spend huge amounts of money in courtroom battles. Due to the vast amounts of time and money involved in the trial process, the American and Italian business communities have increasingly turned to legal alternatives that are more prompt, private and economical than the courtroom. Alternative Dispute Resolution (ADR) refers to the wide spectrum of legal avenues that use means other than trial to settle disputes. The main ADR alternatives to civil litigation are negotiation, arbitration, conciliation and mediation. Other, more particular ADR processes available are early neutral evaluation, mini-trial, summary jury trial, and the judicial settlement conference. Disputing parties use these ADR methods because they are expeditious, private, and generally much less expensive than a trial. The main focus of this project report is Conciliation which is explained further in detail.

Conciliation
Conciliation is peaceful method of settlement of disputes. The process of conciliation involves a third party investigation of the basis of settlement of disputes and the submission of a report embodying suggestions for a settlement. As such it involves both the elements of enquiry and mediation; in fact the process of conciliation emerged from treaties providing for permanent enquiry commissions. Further it may be noted that conciliation reports are only proposals and do not constitute binding decisions. Conciliation can be defined as Conciliation is an intervention in settlement of international disputes by a body having no political autonomy of its own but enjoying confidence of parties to dispute with task of investigating every aspect of dispute and proposing a solution which is not binding on parties It is therefore crucial that the conciliation body have the trust of the Parties. Withoutthis trust, its involvement will be in vain. In addition, becau se it is responsible for examining all aspects of the dispute, it must identify the facts of the case. It can take into account not only applicable rules of law but al so all non- legal aspects of the case. Its proposals can be based in whole or in p art on the law However, legal considerations may only be secondary and may even be absent altogether. Moreover, because the Parties are not bound to implement the bodys solution, they are free to reject its proposals. The freedom of states remains unfettered. Conciliation tries to individualize the optimal solution and direct parties towards a satisfactory common agreement. Although this sounds strikingly similar to mediation, there are important differences between the two

methods of dispute resolution. In conciliation, the conciliator plays a relatively direct role in the actual resolution of a dispute and even advises the parties on certain solutions by making proposals for settlement. In conciliation, the neutral is usually seen as an authority figure who is responsible for the figuring out the best solution for the parties. The conciliator, not the parties, often develops and proposes the terms of settlement. The parties come to the conciliator seeking guidance and the parties make decisions about proposals made by conciliators. In this regard, the role of a conciliator is distinct from the role of a mediator. The mediator at all times maintains his or her neutrality and impartiality. A mediator does not focus only on traditional notions of fault and a mediator does not assume sole responsibility for generating solutions. Instead, a mediator works together with the parties as a partner to assist them in finding the best solution to further their interests. A mediators priority is to facilitate the parties own discussion and representation of their own interests, and guide them to their own suitable solution- a good common solution that is fair, durable, and workable. The parties play an active role in mediation, identifying interests, suggesting possible solutions, and making decisions concerning proposals made by other parties. The parties come to mediator seeking help in finding their own best solution.

Conciliations Rise as a Method of Dispute Settlement

As a dispute settlement option, conciliation only appeared on the world stage after the First World War in the Locarno Treaties of 1925 and the General Act of Arbitration of 1928. Though it resembles good offices and mediation at first glance (it aims to find common ground

between both Parties and propose a non-binding solution), it can only be understood, as mentioned above, by contrasting it with the two other settlement methods: It was very broadly designed as a reaction against the good offices and mediation practices used in the 19th century (as exemplified by the Concert of Europe), which made it too easy for large powers to disguise the pressure tactics they used on small

and medium-sizedstates .Conciliationwas seen as being more legal and formal in nature because the conciliation body was more impartial. The 1960s brought renewed interest in this method of dispute resolution. For example, conciliation was included in the 1962 Protocol establishing the Conciliation and Good Offices Commission responsible for Seeking the Settlement of Any Disputes which may arise between States Parties to the UNESCO Convention against Discrimination in Education. Every two years at UNESCOs General Conference, the

Executive Council forwards to UNESCO a list of people presented by the Parties to this Protocol in view of their election or reelection as Commission members. To date, however, no dispute has yet been settled under the Protocol in question. Conciliation is also mentioned in articles 12 and 13 of the 1965 International Convention on the Elimination of All Forms of Racial Discrimination (which came into force in 1969). Here again it appears that

conciliation has not been used to date. A slightly more recent example is the 1982 United Nations Convention on the Law of the Sea (UNCLOS), which stipulates that maritime delimitations must be that, through international little in an recourse to established through conciliation or the in 1998 latter, that

agreement and, failing judicial adjudication. Noting Richard Meese suggested states would benefit from

article published

using international

conciliation more often for

some of the remaining delimitations Starting in the 1990s, a number of international instruments in new areas of law method. This was the case for adopted conciliation as a dispute resolution the UN Convention on Biological

Diversity (1992), the United Nations Model Rules for the Conciliation of Disputes between States (1996), the Rotterdam Convention on the Prior Informed Consent (PIC) Procedure for Certain Hazardous Chemicals and Pesticides in International Trade (1998), the Permanent Court of

Arbitration Optional Rules for Conciliation of Disputes Relating to Natural Resources and the Environment (2002), and the United Nations Commission on International Trade Law (UNCITRAL) Model Law on International Conciliation (2002). But notwithstanding the interest

Commercial

shown in conciliation in

international agreements,

actual cases where conciliation was used remain rather rare

Conciliation and Arbitration

Though like arbitration, conciliation is also another means of settling disputes, they two differ in many vital aspects. The only similarity that appears between the two is that a third person is chosen or nominated by the parties to resolve their disputes. The main points of difference between arbitration and conciliation may be stated as follows:1. The method of conciliation is generally applicable to existing disputes, while the mode of arbitration is available for existing as well as for the future disputes. 2. For adopting the method of conciliation, there is no need for a prior agreement for resorting to this method, but in arbitration a prior agreement for arbitration between the parties is required. 3. The pre-agreement in arbitration must be in writing but since no pre agreements are required in conciliation, there is no such binding in the case of conciliation. 4. While the role of conciliator is to help and assist the parties to reach an amicable settlement of their dispute, the arbitrator does not merely assist the parties but he also actively arbitrates and resolves the dispute by making an arbitral award.

5. In case of conciliation a party may require the conciliator to keep the factual information confidential and not disclose ditto the other party, but it is not so in arbitration as the information given by a party is subjected to scrutiny by the other party. Thus there is no question of confidentiality in case of arbitration awards

6. A settlement agreement may be made by the parties themselves and the conciliator shall authenticate the same. An arbitration award on other hand is not merely a settlement agreement but it is judgment duly signed by the arbitrator. 7. Last but not the least, an arbitrator has to decide according to law , but a conciliator can conciliate irrespective of law

Conciliation and Mediation

Though conciliation and mediation appear to be similar in interchangeable terms, there is subtle difference between the two: 1. In Mediation a mediator, who is neutral and intermediary, plays an active role by working-out compromise formulas after hearing both the parties. But in case of conciliation, the role of conciliator, who also plays the role of neutral intermediary, is to bring the parties together in aflame of mind to forget their animosities and prepare them for a compromise by adopting amid way approach which may be acceptable to both the parties in dispute. Thus a conciliator is an active participant in bridging the gulf between the parties and suggests solution which is acceptable to the parties.

2. The power of conciliator is larger under the arbitration and conciliation act and whereas the powers of the mediator are too limited as he can only suggest proposals for the settlement. 3. The conciliator can an make proposals for settlement, formulate or reformulate the terms of a possible settlement whereas a mediator would merely facilitate a settlement between the parties

Cases
The conciliation procedure was used in the Iceland-Norway dispute over the continental shelf delimitation between Iceland and Jan Mayen Island. The agreement establishing the Conciliation Commission stressed that the question was the subject of continuing negotiations and that the Commission report would not be binding, both elements characteristic of the conciliation method The Commission had also to take into account Icelands strong economic interests in the area as well as other factors. The role of the concept of natural prolongation within continental shelf delimitation was examined as well as the legal status of islands and relevant state practice and court decisions. The solution proposed by the Commission was for a joint development zone, an idea that would have been unlikely to come from a judicial body reaching a decision solely on the basis of the legal rights of the parties. In other words, the flexibility of the conciliation process seen in the context of continued negotiations between the parties was demonstrated.