DISCOVER . LEARN . EMPOWER
DEPARTMENT OF LAWS
BBA LLB AND B.COM LLB
SUBJECT- Clinical - I- Alternative Dispute
Name of the Faculty : PUNEETISH KAUR
Clinical – I -
• Space for visual (size 24)
CO 1 The student will understand the meaning
CO2 The students will understand the
approaches of conciliation
Will be covered in
• 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.
• 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
• 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
Conciliation in Arbitration and
• 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.
• 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.
• 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.
• 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
• This part shall not apply where by virtue of
any law for the time being in force certain
disputes may not be submitted to
a. Explains the scope of Conciliation making it clear that this
method covers domestic or international disputes of
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.
• 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
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.
• 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.
• 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.
• There can only be 1 Conciliator in Conciliation
• Can the parties approach a Suitable Institution
for the appointment of conciliator ?
• When does the Conciliatation proceeding
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.
• The Conciliatation rules are based on:-
1. UNCITRAL Rules on Conciliation, 1980
2. UNCITRAL Rules on Conciliation, 1995
3. UNCITRAL Rules on Conciliation, 2000
• Submission of statements to conciliator Section 65
• The conciliator may request each party to submit to him a brief
• 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
• The conciliator may require each party to submit to him a further
written statement of his position and the facts and grounds in its
• 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.
• 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.
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.
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))
• 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
Is it mandatory for each party to send a copy of
statement made to the conciliator to the other
• Is it in the authority of the Conciliator to ask
for additional statements after the parties
have submitted their Documents ?
• The Conciliator is bound by :-
1. The Evidence Act
2. The CPC
3. Principles of Natural Justice
4. The Judicial Precedents
• 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.
• 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.
• Communication between conciliator and parties - Sec
• 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.
• 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
• 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
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
d. The conciliator shall authenticate the settlement agreement and
furnish a copy thereof to each of the parties.
• 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
• Is this Valid ?
• 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.
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
This means it will be treated as a decree of civil
court and shall be enforceable as such.
• Section 75- Confidentiality.—The conciliator
and the parties shall keep confidential all
matters relating to the conciliation
• Confidentiality shall extend also to the
settlement agreement, except where its
disclosure is necessary for purposes of
implementation and enforcement.
• Termination of Conciliation Proceedings : Section 76
• Section 76 lays down four ways of the termination of conciliation proceedings.
• 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))
• Section – 77: Resort to arbitral or judicial
• —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
• 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
• Section 78: Costs of Conciliation Proceedings
• According to Section 78, costs means reasonable costs relating to
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
c. Any assistance received from institution for the appointment of
conciliator or for any administrative assistance procured for conduct
• 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.
• 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.
• 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
• Clause (b) of Section 80 prohibits the parties to
produce the conciliator as a witness in any arbitral or
• Section 81: Admissibility of evidence in other
• 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.
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
• 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.
• The Conciliation proceedings are concluded in the
• 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
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.
• 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,
Email: email@example.com@ gmail.com
1. Arbitration and Conciliation Act,1996 ( Section
2. CPC,1908- Section 89
3. Legal Services Authority Act, 1987 (Section 19,20
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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