Vous êtes sur la page 1sur 6

Alternative Dispute Resolution

Module VIII
CONCILIATION
Semester VI, Section C
Class Summary

Mr. S.K.Sinha
Faculty of Law, HNLU
Appointment of Conciliator
Section 63 advocates that there can be one, two or three conciliators to settle a
dispute subject to the agreement of the parties and where more than one conciliator is
appointed they must act jointly as a general rule.
Section 64 contains the relevant provisions on the appointment of conciliators. If
there is a sole conciliator, the parties must agree on the choice of person. In case of
two conciliators, each party may appoint one conciliator. In case of three conciliators,
each party may appoint one conciliator and both the parties may agree on the name of
the third conciliator who shall act as presiding conciliator. Further, the parties may
take the assistance of a suitable institution like ICADR, ICA as provided under
Section 64(2) of the Act for the appointment of conciliators.
Basically the conciliator must be an impartial person who would strive to arrive at an
amicable settlement between the disputing parties. In fact conciliator of a nationality
other than the nationalities of the parties may also be appointed by the parties. The
Institutions must take due care in such appointments.
Role of Conciliator
Independence and Impartiality Section 67 (1) of the Act advocates that the
conciliators shall act independently and also impartially and assist the parties in
their attempt to reach an amicable settlement of their dispute.
Points for consideration The conciliator should take into consideration the
principles of objectivity, fairness and justice, the rights and obligations of the
parties, the usages of the trade and circumstances of the dispute and also any
previous business practices between the parties [ Section 67 (2)].
Conduct of proceedings The conciliator may conduct the proceedings taking
into account the circumstances of the case, wishes of the parties and in such a
manner as he considers appropriate. He may also consider the request for
hearing oral statements and the need for a speedy settlement of the dispute
[Section 67 (3)].
Proposal for settlement Section 67(4) advocates that the conciliator may at
any stage of the proceedings, make proposals for settlement of the dispute and it
need not be in writing and need not be accompanied by a statement of the
reasons there for.
Application of certain Laws Under Section 66 of the Act, the conciliator is
not bound by the Code of Civil Procedure, 1908 or the Indian Evidence Act,
1872.


Commencement of Conciliation Proceedings
Part III, Sections 61 to 81 of the Arbitration and Conciliation Act, 1996 pertain
to conciliation. Various aspects of conciliation, the procedure and authenticity of
the conciliation agreement are dealt with under this Part III of the Act.
Written invitation The party inclined to adopt the method of conciliation shall
send to the other party a written communication inviting him to conciliate under
Part III of the Act, identifying the subject of the dispute briefly [Section 62
(1)].
Written acceptance - The other party must accept this invitation in writing.
Conciliation proceedings commence on such written acceptance [Section 62(2)].
Effect of rejection of invitation - If the other party rejects the invitation to
conciliate, there will be no conciliation proceedings [Section 62 (3)].
Effect of silence to invitation 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 same to the other party [ Section 62 (4)].
Termination of conciliation proceedings.
Section 76 of the Act contains the relevant provisions on termination of
conciliation proceedings. The conciliation proceedings terminate under the
following circumstances
(a) By signing of the settlement agreement by the parties; on the date of agreement.
(b) On the failure of conciliation; by a written declaration of the conciliator; on the
date of the declaration;
(c) By a written declaration of the parties addressed to the conciliator that the
proceedings are terminated; on the date of the declaration;
(d) By a written declaration of a party to the other party and the conciliator that the
proceedings are terminated; on the date of declaration.
Under Section 77 of the Act, during the conciliation proceedings, the parties
cannot initiate any judicial or arbitral proceedings in respect of the dispute
which 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. Thus, basically an arbitrator
can conciliate while arbitrating but the conciliator cannot arbitrate while
conciliating.

Thank you for your time

soumyakanti.lws@gmail.com
www.hnlu.ac.in