Unit 5th

ADR
Q1 Conciliation diffrence between Arbitration, Mediation and Conciliation?
Difference between conciliation and arbitration
The main difference between conciliation and arbitration is that a conciliator doesn’t have
the authority to ask for evidence or witnesses, and as such, conciliation as a process doesn’t
have legal standing. On the other hand, the arbitrator needs to make a decision based on
evidence and his final verdict is legally binding.
An arbitrator is usually a legal professional or a retired judge, or even an accountant or
engineer. Both parties present their cases in front of the arbitrator and they don’t negotiate
out of the arbitration session.The conciliation process is the least formal and there is much
space for improvisation. Unlike most arbitrations, this process can be done privately.
Conciliation is more amicable and open to bargaining and it doesn’t involve a suit.In the
conciliation procedure an intermediary person will try to determine what are the goals of
each party, and then suggest possible solutions. An intermediary person (a conciliator)
needs to discuss with each side separately during the whole negotiation process. The goal of
conciliation is to find an outcome that is mutually acceptable to both parties. A conciliator
has a role to improve communication and lower tensions between two parties.Whereas in
arbitration parties cannot make a final resolution, in mediation parties have the power to
agree or not agree. The resolution is not reached unless both sides agree. Often, mediation
is a required step during a process of litigation.Mediators have less power than arbitrators,
they cannot issue orders, find fault, or make decisions. Instead, mediators can help parties
get a settlement by guiding them through communications, collecting necessary
information, and developing solutions.The mediation process is more flexible than
arbitration, less formal and both parties can take part in dispute resolution. It is more likely
that the disputing parties will be more satisfied with the result of mediation then arbitration
because they can impact the end result.Conciliation and mediation can be highly similar,
although the focus of the former is more on the relationship, and the latter on result. Also,
because mediation is often a required step in a litigation process, the attempt at mediation,
and the recorded result, even if failed, is a more formal process than conciliation.For less
complex dispute resolutions, mediation is a better choice than arbitration whereas
arbitration is the smart choice for serious disputes when parties are no longer on good
terms. During conciliation both parties are often motivated to improve the relationship
between the parties whereas for mediation and arbitration the most important focus is
geared towards resolving a dispute.
Q2:- Section 62 63 64 66 67 73 76 of arbitration and concilation act 1996?
Conciliation is an alternative dispute resolution mechanism with the help of conciliator.
Conciliator assists the disputing parties to explore potential solutions and find a mutually
acceptable solution by lowering tensions and improving communications. Conciliation is an
alternative dispute resolution mechanism which has been given statutory recognition by
incorporating provisions in Sections 61 to 81 of Part III of the Arbitration and Conciliation
Act, 1996.
Commencement of the proceedings of Conciliation (Section 62)
Section 62 provides for the commencement of proceedings for conciliation. For the purpose
of settling the dispute through the process of conciliation all what is required is a proposal in
writing and its acceptance thereof. When a proposal is made by one party the other party
has the option of the acceptance of proposal or its rejection.
Rejection does not always have to be expressed it may be implied. If the party who sends
the proposal does not receive any follow up or reply within a period of thirty days or other
stipulated period it shall amounts to rejection and hence the process of conciliation will not
commence.
Number of conciliators (Section 63)
Once the proposal is accepted by the other party the next important step is to have a
conciliator. Section 63 of the 1996 act provides that there under usual circumstances there
will be only one conciliator. And in no case the number of conciliators shall exceed three
[section 63(2)] which is the maximum limit and the general rule is that they shall act jointly.
Appointment of Conciliators- Section 64
1)If there is one conciliator in a conciliation proceeding, the parties may agree on the name
of a sole conciliator.
2)If there are two conciliators in a conciliation proceeding, each party may appoint one
conciliator.
3)If there are three conciliators in a conciliation proceeding, 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.
Sub- section (2) of section 64 provides for the assistance of a suitable institution or person in
the appointment of conciliators. Either a party may request such institution or person to
recommend the names of suitable individuals to act as conciliators, or the parties may agree
that the appointment of one or more conciliators be made directly by such institution or
person..
Section 66 in THE ARBITRATION AND CONCILIATION ACT, 1996
66. Conciliator not bound by certain enactments.—The conciliator is not bound by the Code
of Civil Procedure, 1908 (5 of 1908) or the Indian Evidence Act, 1872 (1 of 1872).
- Section 67 - Role of conciliator
(1) The conciliator shall assist the parties in an independent and impartial manner in their
attempt to reach an amicable settlement of their dispute.
(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.
(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.
Section 73 in THE ARBITRATION AND CONCILIATION ACT, 1996
73. Settlement agreement.—
(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.
(2) 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.
(3) When the parties sign the settlement agreement, it shall be final and binding on the
parties and persons claiming under them respectively.
(4) The conciliator shall authenticate the settlement agreement and furnish a copy thereof
to each of the parties.
Section 76 in THE ARBITRATION AND CONCILIATION ACT, 1996
76. Termination of conciliation proceedings.—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.