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concillation.pptx

  1. 1. DISCOVER . LEARN . EMPOWER Conciliation INSTITUTE- UILS DEPARTMENT OF LAWS BBA LLB AND B.COM LLB SUBJECT- Clinical - I- Alternative Dispute Resolution CODE- LLT-414 Name of the Faculty : PUNEETISH KAUR
  2. 2. Clinical – I - Alternative Dispute Resolution • Space for visual (size 24) 2 CO Number Title Level CO 1 The student will understand the meaning of conciliation Rememb er CO2 The students will understand the approaches of conciliation Understa nd Course Outcome Will be covered in this lecture
  3. 3. Conciliation • The conciliation is a non-binding procedure in which an impartial and neutral third party assists the disputing parties to reach a mutually satisfactory and agreed settlement of the dispute. • Conciliation is an alternative dispute resolution process whereby the parties to a dispute use a conciliator, who meets with the parties separately in order to resolve their differences.
  4. 4. • Voluntary Conciliation- In this method parties can voluntarily participate in the process of conciliation for resolving their dispute. • Compulsory Conciliation- If parties do not want to take the opportunity of voluntary conciliation then they can go for compulsory conciliation. In this method, if the parties do not want to meet the other party to resolve the dispute then the process is said to be compulsory. This method is commonly used in labour cases.
  5. 5. • The conciliation means an 'assisted bargaining process' between the two. • The Conciliator has no power of decision. • The conciliation stresses the power of diplomacy and of mental acuteness as contrasted with the judicial process and decision making aspect of adjudication and arbitration. • The conciliation process requires involvement of Conciliator who is knowledgeable and experienced person.
  6. 6. Conciliation in Arbitration and Conciliation Act
  7. 7. • Part III of the Act deals with the concept of Conciliation under the Act. • Conciliation received statutory recognition in India even before the enactment of Part 3 of Arbitration and Conciliation Act, 1966 through • Order No.xxxii- A of CPC,1908 • Sec 23 of Hindu Marriage Act • Sec 3 of Industrial Dispute Act, 1947 • However, these were not exhaustive, therefore detailed framework in the Act.
  8. 8. • The UNCITRAL Rules on Conciliation, 1980 recognized “the value of conciliation as a method of amicably settling disputes arising in the context of international commercial relations” and that adoption of uniform conciliation rules by “countries with different legal, social and economic systems would significantly contribute to the development of harmonious international economic relations.” • Accordingly, these rules were closely followed by the Indian legislators to formulate conciliation rules under Part III of the Act.
  9. 9. • The procedure laid down in Part III of the Act reflects the following broad principles: • (1) non-adversary nature of conciliation proceedings – there is no claimant or plaintiff in conciliation proceedings, • (2) voluntary nature of proceedings – any party can commence and discontinue the proceedings, • (3) flexible procedure – the conciliator has the discretion to adopt any procedural law to ensure speedy and inexpensive conduct of proceedings, and • (4) decisions are recommendatory – disputes are settled by mutual agreement and not by imposed decisions.
  10. 10. • Application And Scope- Section 61 • This part shall apply to conciliation of disputes arising out of legal relationship, whether contractual or not and to all proceedings. • This part shall not apply where by virtue of any law for the time being in force certain disputes may not be submitted to conciliation.
  11. 11. a. Explains the scope of Conciliation making it clear that this method covers domestic or international disputes of commercial nature. b. Legal Relationship can be contractual or Non- Contractual or it may arise by virtue of some other legal obligation for eg- the dispute can arise out of non-fulfillment of tortuous liability or unenforceable contracts. c. Thus, the scope of Conciliation is broad. In criminal matters which are compoundable are permissible. Even those disputes which are non arbitrable like matrimonial, testamentary and taxation cases etc, conciliation is allowed. d. But also restricted, some special statue is present, criminal disputes not compoundable, FR etc.
  12. 12. • Commencement of conciliation proceedings Section 62 a. The conciliation proceedings are initiated by one party sending a written invitation to the other party to conciliate. b. The invitation should identify the subject of the dispute. c. Conciliation proceedings are commenced when the other party accepts the invitation to conciliate in writing. There is no performa for the written request. d. If the other party rejects the invitation, there will be no conciliation proceedings. e. If the party inviting conciliation does not receive a reply within 30 days from the date he sends 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. f. Thus, Oral Confirmation not applicable.
  13. 13. • Number And Qualifications of Conciliators- Section 63: There shall be one conciliator unless the parties agree that there shall be two or three conciliators. • When there is more than 1 Conciliator, then they should as a rule act jointly.
  14. 14. • 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. • If there are two conciliators in a conciliation proceeding, each party may appoint one conciliator. • 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 they can request the institution to do so or the these appointments directly made by the institution.
  15. 15. • There can only be 1 Conciliator in Conciliation procedure ? • Yes • No
  16. 16. • Can the parties approach a Suitable Institution for the appointment of conciliator ? • Yes • No
  17. 17. • When does the Conciliatation proceeding Start ? 1. when the other party accepts the invitation to conciliate in writing. 2. One party sending a written invitation to the other party to conciliate 3. when the other party accepts the invitation to conciliate on telephone.
  18. 18. • The Conciliatation rules are based on:- 1. UNCITRAL Rules on Conciliation, 1980 2. UNCITRAL Rules on Conciliation, 1995 3. UNCITRAL Rules on Conciliation, 2000
  19. 19. • Submission of statements 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 a copy of such statements, documents and evidence to the other party.
  20. 20. • Rules of procedure Sec 66 • The conciliator is not bound by the rules contained in the Code of Civil Procedure, 1908 or the Indian Evidence Act, 1872. Though the conciliator is not bound by the technical rules of procedure, he should not ignore the principles of natural justice.
  21. 21. Role of a Conciliator- Section 67 • 1. Independence and impartiality Sec 67(1) • The conciliator should be independent and impartial. He should assist the parties in an independent and impartial manner while he is attempting to reach an amicable settlement of their dispute. • 2. Fairness and justice Sec 67(2) • The conciliator should be guided by principles of objectivity, fairness and justice. He should take into consideration, 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.
  22. 22. In the conduct of conciliation proceedings, the conciliator has some freedom. He may conduct them in such manner as he may consider appropriate. But he should take into account the circumstances of the case, the express wishes of the parties, a party request to be heard orally and the need of speedy settlement of dispute. (Sec 67(3)) 4. The role of the conciliator is to assist the parties to reach an amicable settlement of the dispute. He may at any stage of the conciliation proceedings make proposals for the settlement of the dispute. Such proposals need not be in writing and need not be accompanied by a statement of reasons. (Sec. 67(4))
  23. 23. • Administrative assistance Section 68 • Section 68 facilitates administrative assistance for the conduct of conciliation proceedings. The parties and the conciliator may seek administrative assistance by a suitable institution or the person with the consent of the parties.
  24. 24. Is it mandatory for each party to send a copy of statement made to the conciliator to the other party. Yes No
  25. 25. • Is it in the authority of the Conciliator to ask for additional statements after the parties have submitted their Documents ? • Yes • No
  26. 26. • The Conciliator is bound by :- 1. The Evidence Act 2. The CPC 3. Principles of Natural Justice 4. The Judicial Precedents
  27. 27. • Pick the wrong statement ? 1. The conciliator should be guided by principles of objectivity, fairness and justice. 2. The Conciliator should assist the parties in an independent and impartial manner. 3. The conciliator is bound by the rules contained in the Code of Civil Procedure, 1908 or the Indian Evidence Act, 1872.
  28. 28. • What statement is false about the proposal made by the Conciliator ? 1. The role of the conciliator is to assist the parties to reach an amicable settlement of the dispute. 2. This has been written in Sec 67 (4). 3. Such proposals need be in writing 4. He may at any stage of the conciliation proceedings make proposals for the settlement of the dispute.
  29. 29. • Communication between conciliator and parties - Sec 69(1) • The conciliator may invite the parties to meet him or may communicate with them orally or in writing. He may do so with the parties together or with each of them separately. • Place of meeting Sec 69(2) • The parties have freedom to fix by their agreement the place where meetings with the conciliator are to be held. Where there is no such agreement, the place of meeting will be fixed by the conciliator after consultation with the parties. In doing so the circumstances of the conciliation proceedings will have to be considered.
  30. 30. • Disclosure of information Sec 70 • When the conciliator receives an information about any fact relating to the dispute from a party, he should disclose the substance of that information to the other party. The purpose of this provision is to enable the other party to present an explanation which he might consider appropriate. • Cooperation of parties with conciliator Sec 71 • The parties should in good faith cooperate with the conciliator. They should submit the written materials, provide evidence and attend meetings when the conciliator requests them for this purpose.
  31. 31. • Suggestions by parties for settlement of dispute Section 72—Each party may, on his own initiative or at the invitation of the conciliator, submit to the conciliator suggestions for the settlement of the dispute
  32. 32. 73. Settlement agreement: a. When it appears to the conciliator that there exist elements of a settlement likely to be accepted by the parties, he shall formulate the terms of a possible settlement and submit them to the parties for their observations. b. If the parties reach agreement on a settlement of the dispute, they may draw up and sign a written settlement agreement. c. When the parties sign the settlement agreement, it shall be final and binding on the parties and persons claiming under them respectively. d. The conciliator shall authenticate the settlement agreement and furnish a copy thereof to each of the parties.
  33. 33. • When the concillator held some meetings with the parties and drew up a settlement agreement by himself in secrecy and send it to court in a sealed cover. The HC accepted the agreement . • Is this Valid ?
  34. 34. • In Mysore Cements Ltd vs. Svedala Barmac Ltd, it is held that every agreement or arrangement between the parties during pendency of conciliation agreement has the same status of decree of a court. • It is only that which has been arrived at in conformity with the manner stipulated and got duly signed authenticated according to this section, will be valid.
  35. 35. Section 74 : Status and effect of settlement agreement.—The settlement agreement shall have the same status and effect as if it is an arbitral award on agreed terms on the substance of the dispute rendered by an arbitral tribunal. This means it will be treated as a decree of civil court and shall be enforceable as such.
  36. 36. • Section 75- Confidentiality.—The conciliator and the parties shall keep confidential all matters relating to the conciliation proceedings. • Confidentiality shall extend also to the settlement agreement, except where its disclosure is necessary for purposes of implementation and enforcement.
  37. 37. • Termination of Conciliation Proceedings : Section 76 • Section 76 lays down four ways of the termination of conciliation proceedings. These are: • The conciliation proceedings terminate with the signing of the settlement agreement by the parties. Here the date of termination of conciliation proceedings is the date of the settlement agreement. (Sec 76(a)) • The conciliation proceedings stand terminated when the conciliator declares in writing that further efforts at conciliation are no longer justified. Here the date of termination of conciliation proceedings is the date of the declaration. (Sec 76(b)) • The conciliation proceedings are terminated by written declaration of the parties addressed to the conciliator to the effect that the conciliation proceedings are terminated. Here the date of termination of conciliation proceedings is the date of the declaration. (Sec 76(c)) • The conciliation proceedings are terminated when a party declares in writing to the other party and the conciliator, that the conciliation proceedings are terminated. Here the date of termination of conciliation proceedings is the date of the declaration. (Sec 76(d))
  38. 38. • Section – 77: Resort to arbitral or judicial proceedings. • —The parties shall not initiate, during the conciliation proceedings, any arbitral or judicial proceedings in respect of a dispute that is the subject-matter of the conciliation proceedings • Exception: that a party may initiate arbitral or judicial proceedings where, in his opinion, such proceedings are necessary for preserving his rights.
  39. 39. • Real purpose: To encourage resort to non- formal conciliation in preference to arbitration and formal court. • To meet emergency cases like requirement of general law of limitation or of time bar clauses.
  40. 40. • Section 78: Costs of Conciliation Proceedings • According to Section 78, costs means reasonable costs relating to following:- a. the fee and expenses of the conciliator and witnesses requested by the conciliator with the consent of the parties. b. any expert advice requested by the conciliator with the consent of the parties c. Any assistance received from institution for the appointment of conciliator or for any administrative assistance procured for conduct of proceedings. • It is the conciliator who fixes the cost of conciliation proceedings upon there termination and gives a written notice to its parties. • The costs are borne by both the parties in equal shares.
  41. 41. • Section 79 :Deposits of Advance Amount : • The conciliator may direct each party to deposit an equal amount as an advance for the costs. • If the required deposits are not paid in full by both parties within thirty days, the conciliator may suspend the proceedings or may make a written declaration of termination of the proceedings to the parties, effective on the date of that declaration.
  42. 42. • Restrictions on Role of Conciliator Section 80 • Section 80 places two restrictions on the role of the conciliator in the conduct of conciliation proceedings: • Clause (a) of Section 80 prohibits the conciliator to act as an arbitrator or as a representative or counsel of a party in any arbitral or judicial proceeding in respect of a dispute which is subject of the conciliation proceedings. • Clause (b) of Section 80 prohibits the parties to produce the conciliator as a witness in any arbitral or judicial proceedings.
  43. 43. • Section 81: Admissibility of evidence in other proceedings • The parties shall not rely on or introduce as evidence in arbitral or judicial proceedings in following matters:- • A. views expressed or suggestions made by the other party in respect of a possible settlement of the dispute; • B. admissions made by the other party in the course of the conciliation proceedings; • C. proposals made by the conciliator; • D. the fact that the other party had indicated his willingness to accept a proposal for settlement made by the conciliator.
  44. 44. Conciliation Proceedings Under The Industrial Dispute Act • 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.
  45. 45. • Section 5 : Conciliation Board The appropriate Government may as occasion arises by notification in the Official Gazette constitute a Board of Conciliation for promoting the settlement of an industrial dispute. • 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.
  46. 46. • 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.
  47. 47. Conciliation in Hindu Marriage Act • Section 23 (2) of the Hindu Marriage Act, 1955 which contains similar provisions provides that “before proceeding to grant any relief under this Act, it shall be the duty of the court in the first instance, in every case where it is possible so to do consistently with the nature and circumstances of the case, to make every endeavour to bring about a reconciliation between the parties.” • Section 23 (3) For the purpose of aiding the court in bringing about such reconciliation, the court may, if the parties so desire or if the court thinks it just and proper so to do, adjourn the proceedings for a reasonable period not exceeding fifteen days and refer the matter to any person named by the parties in this behalf with directions to report to the court as to whether reconciliation can be and has been, effected and the court shall in disposing of the proceeding have due regard to the report.
  48. 48. REFERENCES (size:44) • Anupam Kurlwal, An Introduction to Alternative Dispute Resolution (Central Law Publications; Second edition edition (2014) • S.C. Tripathi, Alternative Dispute Resolution System, (Allahabad , Central Law Publications, 2014) • http://www.legalserviceindia.com/legal/article-1180-principles-and-procedure-of- conciliation.html • https://www.indialegallive.com/special-story/conciliation-an-effective-adr-mechanism • http://legislative.gov.in/sites/default/files/A1996-26.pdf • http://psalegal.com/wp-content/uploads/2017/01/DisputeResolutionBulletin- IssueVII08092010070309PM.pdf 49
  49. 49. THANK YOU For queries Email: puneetish.e8246@cumail.in@ gmail.com
  50. 50. 1. Arbitration and Conciliation Act,1996 ( Section 61-81) 2. CPC,1908- Section 89 3. Legal Services Authority Act, 1987 (Section 19,20 and 21) 4. Industrial Disputes Act (Section 12) 5. Family Courts Act, 1984 6. Hindu Marriage Act, 1955 Non- Binding Process upon the parties.

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