16 MEDIATION AND ‘Mediation’ and ‘conciliation’ are regarded as equivalent terms referring to essentially the same kind of third party intervention in promoting voluntary settlement of disputes. On a strict interpretation of their etymological origins, a distinction is often drawn between the two terms, although Prof. Davey has observed: “In theory, the distinction is almost hair-splitting. In practice, conciliation shades into mediation. The differences between the two are essentially differences of degree rather than of kind.”" aaah at ‘Conciliation’ is limited to encouraging the parties to discuss their differences and to help them develop their own proposed solutions. ‘Mediation’, on the other hand, implies a stronger form of, intervention, and a mediator may be permitted to offer to the parties proposals for settlement.* ‘The distinction between the two terms tends to disappear in industrial relations practice and there is no consistency in their use from one country to another. In many countries, either “conciliation” or “mediation” is used or both terms are employed interchangeably to denote the same process of third party intervention. In a number of other countries, the two terms are employed to designate different forms of third-party intervention in promoting voluntary settlement.’ Conciliation and mediation, together with good offices, have always been important in the field of international relations for the peaceful settlement of conflicts between states and for the mainte- nance of international peace. Conciliation and mediation likewise have their importance in industrial relations as well. In this field, this method of settling disputes has been most frequently and intensively neat i" eae:when people disagree. It is an ancient disputes between two warring nations, management, and in general, disputes between Po oot serious dis which threaten the rupture aan erer cons associates and friends, nd among pares in comm ‘As a formalised activity, its justification lies in the danger that the consequences o will have an adverse effect on bystanders, whether, as individuals or 0s 9 com former Director of the United States Conciliation Service) has stated: “Despite th foums of settlement of labour disputes are more dramatic and have captured the hea the process of mediation has proved suecessful in reaching settlement in the erat taut in which agreement had not been reached by direct negotiation between the ‘Mediation is a process by which a third party brings together the opposing ‘ron out the differences between them but also to find an answer to problems or and offer alternative suggestions. 3 ‘Mediation is an attempt at settling disputes with the help of an outsider who as in their negotiations. It takes place at the invitation, or atleast with the consent, of b mediator has been described as a confidential adviser and an industrial diplomat ‘a messenger’s service for the parties, and neither imposes his will nor his judgement ‘gives each party his evaluation of its position, and by doing so, he/she influences helps the two parties to come to an agreement of their own accord rather than or a decision of his own. He/she suggests solutions based on knowledge and exp parties, if they have confidence in him, may agree to accept. He/she has a wide ra ‘At one end of the range, mediation means simply getting the parties to talk to ea ‘each a settlement. At the other extreme, mediation means the deliberate effort explore proposals which might lead to settlement* “He/she does not exercise ‘cannot and should not undertake to decide what parties should do; he/she may ‘There are three kinds of mediators, according to Prof. Pigou, namely: @ The eminent outsider, (i) The non-governmental board; and (iii) The board connected with some part of the governmental system of the © These are not mutually incompatible but can be advaitngdouly used to supplement Ieee ia 6 antes, tas Ciect GaiS* Gesace $8 Gloperned wih r services are available as and when needed. The non-governmental board has the ad cries ouside that on being consid as an ad hoe bay, it is mre readily be a better chance of making its voice heard in that breathing space before a strike ot lo bins. There are various advantages inaccessible to non-governmental boards but which # available to the boards attached with the governmental machinery of the country, (D They possess exceptional facilities for ascertainin ‘earliest possible moment through administrative ae existence ofaad with greater intellectual and financial resources and can use them more ‘When mediators are sent out, they are likely to wield Dy Pear xy are likely to wield a modicum of power which may enable Different types of these mediators are valuable in their own spheres. But they are sometimes . The development of a peace-promoting machinery within separate’ industries may be checked by the actions of the intervening body. btn of Sues of Mediation However, there is sufficient scope for mediation in disputes between two parties because in the of a mediator, the clement of ‘proper pride” and ‘courage never to submit or yield’ is climinated by the suggestion that the effort at reconciliation is made as a favour to one party and not as a concession to another party. ‘Mediation can be made a more effective and successful device if the following measures are adopted: (i) Mediation can work only in a climate of consent, Trotta has rightly observed “A mediator has to be acceptable to both parties. If and when parties negotiate, the mediator only acts to avoid an impasse. If the impasse occurs, then his task is to restore negotiation. Ifa strike is imminent, the mediator tries to prevent it; if the strike breaks out, his job is to end it. At each end of these points, the consent of the parties is crucial.”“ (ii) The mediator must be an impartial and unprejudiced person, having influence on the parties ‘and must infuse confidence in them. He must have full knowledge of the case and an extraordinary patience and willingness to hear both parties patiently. (iil) Mediation should take place in a proper setting. It shouldbe available not as a substitute for ‘bargaining by the parties but as a supplement thereto when such bargaining aca impasse. It should strengthen collective bargaining. hort 4 ai(tird party intervention Yt isan attempt. to lly understood as the friendly intervention of a neutral them to ‘oncilfation is general Tr dispuie fo help the partes to settle their differences peacefully. Conciliation may be described as “the practice by which the services of a neutral thi used in a dispute as a means of helping the disputing partis to reduc cent of their differences | 3% solution, It is a process of ratio ce of a conciiato) ‘a process by which x: ‘of workers ‘before (ana sued per ora group of persons witha view fo persuading them (0 ave aay SReoDSNE DY Sl a “i in is fal relations, conciliation tends to bring and sten the termination of wor! 0 parties to move towards 2 mutually” jes on reasoning and persut- is e(oeutral party yng, without using f seeks to find some middle course eat beeen nh sputants 80 that, lock is brought to an end at the’earliest ement bi ‘peace restored. “He/she tries to bridge the gulf between the twoDynamics of Industrio! Relat contending parties; and if ue does not succeed, be at leat tiesto reves Re Gereness, of eee reet eines fement. Thus, ‘them close fo a set he is a otsble, by tendering advice to the paris and teinging them close 108 BRT nod foo oe eee cr resolve theit iffeenon entBY, His/her Fol to suggest solutions Yor the dispute, but to m, fies fo have afresh viewpoin, 3 for alternative solutions. He“fries to persuade the pat Fa cate Hote sated to act as 8 eatayat to the process of renching an spree of give and take, is still present. e , atoronil ‘The element of compromise, iliation process is its flexibi iimplicity which sets it apart from other methods of settling industrial disputes. A conciliator general] not Same jure in every case; he adjusts his approaches, strategy and technigqug to the circumstances of each pete ably, for this reason, it has sometimes been said th “conciliation is an art and the conciliator is a solitary artist 48 a conciliator in an individual capacity; and the methods and techniques of conciliation in indust disputes have been largely developed on the basis of the experiences of individual conciliators. Of conciliation has been regarded essentially as a one-man job. In other countries, conciliation may called a board, a council or @ be undertaken by a body consisting of several members, vai conmites of conciliation rsp referred to as a conciliation board. In India, the government may appoint. conciliation officer for a specific area or even for specific industry, if it thinks fit under Section 4 of the ial Disputes Act, 1947, to mediate in and the settlement of, industrial disputes. He may be appointed either permanently or for jog: Under Section 5 of the same vernment may also, as occasion arises, appoint isting of €chairman ahd two to four other members, to promote t a Board of Conciliation, consis settlement of disputes. Th ‘rade_uniotparty_f0_the-dispute"may Tecommend the names of its . In the absence of such recommendations, the government ea Public utility services are conce Fepresentatives; so can the employers. STS ae eee BS, So far as the conciliation is comp in non-public utility services, it is not compulsory, but the trend is towar -Jntnon-public utility services, itis not compulsory, jowever, it was found Come to an agreement between themselves, with the independent chairman, could rarely arrive followed by the conciliation officer was found to be more acceptable, s which are essential to the work of conciliation. the trust and confidence of the parties, Dot to be swayed 8 OF persuasion from Scanned with CamScannerit ©, One renders to lit ne men an wisdom and of respect for themselves and for each other.” ever allow conciliation it formality or a step on the road to arbitratic Proceedings before him to constitute a mere enormous Service and leads them along the inducements that will persuate ion. He must be able to offer to the parties . the: vAeheaes Serio effort to reach snags ead Prefer a settlement with his asistance, and to make (iv) Because pote ee ature of his work, a conciliator must have the ability to get alc ‘people. Must be, to a certain extent, a specialist in ions—in the relations Bbssvie=a the parties when they come face-to-face, and in his owm relations with them. He must be honest, polite, tactful, self-con it 4 , lent, even-tempered and patient in trying to achieve eee have powers of persuasion, including a good command of tanguage and a facility for expression, and should be able to communicate with the parties in the they ae ith yen Sa {(®) Since @ conciliator has to deal with different persons and has to preside over their joint ‘meetings in conciliation proceedings, he does not only have to have tact and ability to guide ‘and control their joint discussions, but must also give an impression of responsibility, clear- headedness and mature judgement. He must be able to show others that he possesses enough ‘common sense and practical mindedness, a taaneoms Ne ara c (vi) A conciliator should have a friendly personality, a sense of humour, and have a gift for " Telieving tensions at joint discussions. A nimbleness of mind will enable him to grasp quickly ___ and analyse rapidly the main elements of controversy. (vii) Aconciliator should be well-acquainted with the law and regulations concerning industrial a lations and the settement-at industrial disputes. He/she should be familiar with the =~, | industrial relations system, e.g., the development and structure of trade union and employ- __€18” associations; the prevailing methods of collective bargaining; negotiating procedures _ "and practices; the operation of agreed negotiating bodies set up by the parties; the main ‘causes and patterns of disputes; knowledge of human resource management, functioning of trade unions within undertakings, grievance and disciplinary procedures and joint consultancy machinery. (ll) Hehe should be weaned in ciferent specs ofthe management proces, Hebe sould "have some knowledge of services, the fion methods, practices, etc ‘Knowledge about wage rates and Other_financial matters, incentive sé and understanding of t2ditional outlooks and cultural peculiarities, and ofthe way in which they affect fons. the ability and versatility to form judgements. He/she should, therefore, (ON Cad ee vecrel eaperienep ab Ser vatog, beakied getting Kncige of "soeial sciences, psychology, social sasituions, group betaviour and cultural changes. conality, His/her contribution has been discussed by an ILO “The conciliator is a multi-fact Publication in the following words:* i is i the dispute creates The conciliator induces the parties to a course of action. His intervention in for the parties a stems Sfeferent from one of direct confzontation. The conciliator ccm fer (Geimtifediinineed tolre-exemine their positions in this new situation and to consider possiblealternatives ot options. The need to make a choice of possible option continues af jntervention; and, depending on the shifting pressures on the parties, he can sharpen or blun to make a choice. : : be “The conciliator opens to the parties a variety of available Gee iis, th of themselves. By promoting their attitudes and discovering in what fields they show some flexibility, he gains a perspective of the issues in dispute and fl of settlement. These options may vary in number according to the nature & Te they may be available in respect of a single issue or a combination of issues, “ ‘liator controls the timing for the selection of an option, the accepts by aaa fa tina wet On fie basis of his evaluation of the p the progress of the discussion, he can decide whether, it is necessary to increase 0 available for the selection of an option; his contribution isto offer the options at the part ‘when they are most likely to win a positive response from the parties. , “The role of a concilistor may be discussed under following heads: a Discussion Leader: As a discussion leader, the conciliator red eran besa re He gues then oad obensang he ensures that they discuss their ices in as. friendl ly a manner as possible; h analyse their} always striving to keep the analysis on a rational plane; he id ee ba ie the parties’ benefit and for his own. _ Asa Safety Valve: The conciliator places himself in the position of an alterna he feels that the parties are in an aggressive mood. By setting a substitute target, <_-As a Communication Link: The conciliator fulfils an important function as link between the parties: serving as a communication link may either constitute his effort or be a contribution to it. He not only works as a conduit through which from one side to the other, but also provides a thorough explanation and interprets | ety : an Innovator: The conciliator acts as an invaluable source of new ties with different views of the iss alternative solutions and possibly an entirely new approach. As a Sounding Board: He is often described as a “flying ambulance sqi whenever, or wherever, a collision or conflict, which threatens to disturb ha curs or is apprehended to occur between the interests of the parties. He may i which of their own arguments, defences and supports cannot stand under a enquiry. As a Protector: The conciliator plays a protecting role, for he readies the part bargaining positions by exploring alternative solutions during separate meetings As a Failsafe Device: The conciliaior often assists party whi ta tothe extent of bluff or exaggeration of ts reaction to some hone oe dts ene a clearly untenable stance to withdraw gracefully under the banner of roc \~ Asa Stimulator: Sensing the need for positive action, the conciliator can provi ¥ action, impulse to a settlement; he makes a concise statement, 8 ae pe a ha He/she crystallises changes of opinion in the course of liscussions by i ae at th moment and giving such ideas a concrete form. oc iving such ideas a concrete form ‘an Adviser: The conciliator tries to remove misunderstand ee intentions and capabilities. He tries to eM MTS Bec "side thoroughly understands the other's poi na 3 4 realise is own limitation and weaknessee Shi & iste of the ‘tha Mediation and Conciliation they agree to have their disputes settled by an outsider area ‘Compulsion of law); but they are free to accept or not to accept the decision. ‘onciliation, the disputes are referred to the Board of ‘made compulsory by provisions requiring the parties? 2 the conciliation authority to compel their prohibition of strikes and lockouts without prior resort to conciliation. It has been considered that compulsory conciliation can serve a useful purpose even if the parties” attitudes make the possibility of a voluntary settlement very unlikely, especially in developing countries where management and trade unions may as yet have relatively little experience of collective labour relations. Very often, the parties would not even agree to meet each other for direct negotiations; and the management may refuse to recognise and have any dealings with the trade union. In such a situation, the compulsory attendance of the parties at a conciliation oesting will hep them nak *s acquaintance ahd to become used to joint discussions. In other Words, ation can serve a5 a means of education, training and guiding the parties with regard to the nature and conduct of bilateral negotiations."* The ILO Recommendation No. 92 conceming Voluntary Conciliation (and Arbitration), 1951, reads as follows:!* “Voluntary conciliation machinery, appropriate to national conditions, should be made to assist in the prevention and settlement of industrial disputes between employers and workers. Where voluntary conciliation machinery is constituted on a joint basis, it should include equal representation of employers and workers should be free of charge and expeditious; such time limits for the fh aaa oe be prescribed by national laws or regulations should be fixed in advance and kept to the minimum. ii) Provision should be made to enable the procedure to be set in motion either on the 0 failative of any of the parties tothe dispute or ex-officio by the voluntary conciliation authority.conciliation is in progress. Al agreements which the parties may reach during the conciliation Procedure op thereof, should be drawn up in writing and should be regarded as Concluded in the usual manner.’ It should be noted that, by and large, the conciliation procedure as laid down in Indu Disputes Act, 1947, conforms to the principles enunciated ‘al ‘The process of conciliation generally follows a sequence, @ The Hard G) Search for Accommodation: In this phase, each party is primarily concerned wit Protecting its own bargaining position. Neither party normally takes the initiative sy ‘accommodating attitude. The conciliator’s objective is to induce them to and to move closer towards each other. Here, he is concemed with Preventing the discussion fon developing into a stalemate which will spell the failure for his effort, (ii) Emergence of friendlier tone may be there, i.e, there might be a entirely absent; or a partial or fragmentary acceptance of the proposal Conciliation is an art, which includes the art of listening, the art of asking questions, the at of Siming, and the art of persuasion. To use this art, various techniques employed. These techigus are as varied as the personalities of conciliators. As such, many concil ward approach to the parties; others prefer to work in a subtle and calculated manner. There 1 be conciliators who may be forcefully active in taking initiatives; and others who play a relativ's Passive or less aggressive role. The techniques most frequently used are: ©) Listening attentively 1 the parties so that information/facts be gathered; (i) Asking questions to obtain information;ial and political; and nomic.'* al pressure from the conciliator. It is based on his personal relationship with the relationship and pressures are generally considered the mainstay of conciliation ques of persuasion, personal pressures may range from making a simple statement d reasoning and exposition; from simple advice or suggestion to forceful advocacy from appeal to reason to coaxing, wheedling, flattery, cajolery, and, at times, short meeting to keeping the negotiation in continuous sessions. ‘and political pressures include the opinions of outsiders whose views are important, ‘influences. The parties to a dispute may be influenced by the views of other unions, or of employers’ organisations. Public opinion tends to be important in the supply of essential goods and services to the community. In some situations, rgencies, or when inflation is running wild, there is a greater public concern over $ are settled and wage claims dealt with nic pressure relates to market conditions and the parties’ bargaining strength. This vhich parties themselves seek to exert on each other. Pressure for a particular type Il be generated by the factual situation—rise in living costs, wage increases granted ms, wage rates paid by competitors and comparative productivity levels. Economic generally associated with the resort to a strike or lockout. e conciliator’s efforts to settle a dispute comes to an end, he takes some action to wind ‘of the case. He participates in the drafting of any agreement reached; he may write rt on his intervention; and he may assist the parties in initiating further proceedings if his nas not been fully successful. dispute is settled, the fact is reflected in an agreement. The conciliator adds his signature mit Feached during the conciliation proceedings. The report has to be submitted to the ell as to the parties concerned within a specific time, indicating: taken by the conciliator to ascertain the facts and circumstances relating to the steps taken to bring about the settlement; sment of facts and circumstances; ns for which the settlement could not be reached. or is not required to give his recommendations in the matter. Since he is not the taunot pass any order directing a party to actin e particular manner, for that is n and, therefore, illegal and inoperative, Tt is on the basis his report that the nay refer the dispute to a Labour Court or Tribunal, or may refuse to refer ry is an important source of information for policy making and the study of Jations, This report becomes part of the history of the bbe useful for conciliation proceed-we Grneilation offer can ony ‘a report but has no autho ong BEDNGIATION PRoCEDUREAND PRACTICES IN n,, | i ings and practices, it would be fruitful to know aba Sieger Ar rulabhs nl TBE Slt of Conclition Officers a Be oC Central and State Governments can Industrial Disputes Act, 1947, the vee Point Reinet we URS Official Gazette to that effect. He is “charged with the ys ; industrial disputes. He may be appointed ~ a a aa aaa one sie more specified industries TA 3 a 1” (Section 4). The number of conciliation Officers ty be SBD, pocaarey hacia Legislation the appropriate government, taking ing nt the volume of work and the number of industrial disputes that actually exist or may arise His main tsk is to go from one camp to another and find out the greatest common measure op agreement. ad i The conciliation officer has a special obligation where, the dispute relates to a Public tility service, If an industrial dispute exists or is apprehended in such servicels, the conciliation officer my hhold conciliation proceedings in the prescribed manner. In the case of other industries, his power ig discretionary, i.e., he may or may not hold such proceedings. The conciliation officer has a lot of discretion about the procedure to be followed by him. ‘The Act requires that “he may do all ‘such things as he thinks fit for the purpose of inducing the parties to come to a fair and amicable settlement of the disputes.” [Section 12(2)] The conciliation officer has wide powers of investigation into an industrial dispute, and all ‘matters affecting the merits and the right settlement thereof. For the purpose of bringing about a settlement, he must, without delay, hold the meeting of the sentatives of the parties, jointly o is arrived at in the course of conciliation proceedings, the conciliation officer @ report, together with a memorandum of settlement Signed by the parties to the dispute, to the appropriate government. 4 settlement rought about by the conciliation officer is an admin- istrative act and not a quasi-judicial act, If no settlement 3 reached, the conciliation officer is Tequired to send immediately a full report to the wetament setting forth the steps taken by him and the probable reasons for fal The report shall contain a full statement oi e facts and circumstances of the dispute. The i order. He must subst bf the commen ed by the appropri the report of non-settlement of the dispute » of within such shorter period as may government (Section 12), A conciliation proceeding is deemed to have commenced on the date on which a notice of se ot lockout is received by the conciliation officer. In Other cases, it is deemed to have comet fom the date the concliting officer holds proceedings, A coneiliation proceeding is not coms and is deemed to be pending until any of the following condition is fulfilled: Scanned with CamScannerScanned with CamScannerDynamics of Industrial Roy lati shall send a report to the appropriate governmen, ; Board shall send a : arrived at te the reasons why no settlement was arrived ay, ay the st 4 fer thi the facts and é the dispute. The government may refer the matter, Tor the determination of re does not do $0, it has to record the Board's n = ribunal. If te a cs tt ae makes a distinction between an agreement arrived at between g Section 18 of the Act iiation proceedings and without recg vand the workmen in the course of conciliation Pe Pe ioe ona employers and th er ease, the settlement arrived at is binding om al the paviss *o the ints ea sail the other porties interested in the dispute who have been give Notice 0 appear at proceedings. In the latter case, only the parties to the are bound Bi is is agreed upon by the parties. If no such periog j ead mtnm nig fr ch poi mnt om he al 885 SN Kcr seam binding ater tis period of 6 months tll « party (Fepresenting the majority of persons bog by the settlement) gives notice in writing to terminate the settlement. The settlement is also terminate ‘on the expiry of 2 months from the date of such notice, Certain statutory restrictions have been placed on strikes/lockouts in all industrial establishmen ‘during the pendency of any conciliation proceedings before a conciliation officer or a conciliation board and for 7 days after the conclusion of such proceedings (Sections 22 and 23), aM week Bee oe ‘There is no doubt that a great many industrial disputes are settled by conciliation ‘A great many disputes for which bipartite solutions are not feasible, are referred for conciliation ‘and the conciliation officers succeed in bringing about a settlement in over 80% of the cases. Of course, some essentially bipartite agreements are also signed by conciliation officers to ensure theif wider applicability. It may be noted that only a small percentage of cases, on which failure reports are received by the government from the conciliation officers, are referred for adjudication; and th parties agree to arbitration in a very few cases. ‘While evaluating the working of the conciliation machinery in India, the National Commission ‘on Labour observes:"? re ‘The performance of bs conciliation machinery (as indicated by statistics) does not appear t unsatisfactory. ae car (1959-66), out of the total number of disputes handled by the a cues Pe ee arse each year, the percentage of settlements has varied betwee peas, aie isputes were settled mutually, referred to voluntary arbitration of itration ra ct, or to adjudication or were not pursued by the parties. ‘The succes eee tes seems to be varied. In some, it is impressive; in other, disappointing. The Teported to be more successful in Kerala, where the percentes . shtra jarat, a fair measure of success has atten He! He eee eG machinery. Th many cases, the success attribulel > the “quirement to register the agreement. Also, a section Scanned with CamScanneris a process of gi iis be allewca” and take through a third party, such adjournments become i ae. any importance by the parties because they think that it is the conciliation otic nine te Next stage. The representatives sent by the partes © mmake commitment are generally offices, who do not have any power to take Recah ‘They just carry suggestions to the concerned authorities. This : 5a among the conciliation officers.” ; Working of the conciliation machinery in India, the NCL observes that the - aeaaed involves delay. Conciliation is not given any importance by the parties, as ‘ea i a t have no faith in its effective role, To make conciliation more effective, ae Se ee machinery to be made part of the Industrial Relations Purpose of making the conciliation free from external influence. /, Contemporary Collective Bargaining, 1959, p.294. on in Industrial Disputes: A Practical Guide, irs Indian Edition, 1980, p. 3. » S., Collective Bargaining, p. 89. Js op. cit, p. 247. op. cit, p. 89. ‘the National Commission on Labour, 1969, p. 322. it, p.4. AN, (ed.), Indian Labour Problems, 1948, p. 80. dle, Collective Bargaining — Principles and Practices, p. 429. “Asthur, “Functions of the Mediator in Colletive Bargaining”, in Industrial and Labour Relations Review, fork, Vol. 13, No. 21, p. 159. ort of the National Commission on Labour, p. 322. - Paul- Henri, in Forewordto Elmore Jackson, Meeting Minds: A Way to Peace through Mediation, New York, on in Industrial Disputes, pp. 91-92. cit, p. 8. “Management Series No. 4: International Standards and Guiding Principles, 1944-1968, Geneva, -L,, “Mediation and Fact Finding”, in A. ‘York, 1954, pp. 292-300. National Commission on Labour, p. 232. ‘Kambhauser, R. Dubin and AM. Ross (eds.), Industrial vr Journal, Vol. 21, No. 1, January 1980, p. 17. les, A, Industrial Relations in India, 1972. ational Commission on Labour, p. 323.