Conciliation Better Than Other Mode of ADR
“The language of young men is pull down and destroys, but the old man speaks of Conciliation”Chinua Achebe
Every people desire quick and affordable justice hence it is a universal Right. Article 21 of our Indian constitution says ‘Right to a speedy trial is a right to life and personal liberty of every citizen’ which ensures just fair and reasonable procedure.
In 1996, the Indian Legislature accepted the fact of pending cases (over 3.7 million cases pending in courts for over 10 years) before the Indian Courts which cause a delay injustice. For maintaining the rule of law and to lessen the burden on the courts and to make the justice delivery system more efficient they adopted arbitration, mediation and conciliation methods as an Alternative Dispute Resolution (ADR) as an option which deals with civil and commercial matters and is based on the UNCITRAL Model Law on international commercial arbitration and conciliation.
Definition and Meaning of Conciliation
Conciliation is an alternative out-of-court dispute resolution instrument.
The simplest meaning of Conciliation is that which settle disputes outside the court or without litigation. In this process, the parties are kept going through the participation of conciliator. It is one of the non-binding procedures where an independent third party, known as a conciliator, whose work is to help the parties to solve their disputes in way of a mutually agreed settlement of the dispute. As per the Halsbury Laws of England, conciliation is a process of persuading parties to reach an agreement. Because of its non- judicial character, conciliation is considered to be fundamentally different from that of litigation. Normally Judges and Arbitrators decide the case in the form of a judgment or an award that is binding on the parties. While in the procedure of the conciliation, the conciliator who is often a government official gives its report in the form of recommendations which is made public.
Why we go for Conciliation
- Arbitration methods become too practical, technique, and also costly. As for choosing the mode of conciliation, it is not necessary to enter into any formal agreement.
- Peaceable settlement in conciliation, that could not be nautical then the evidence building, the suggestion or proposal made during the conciliation proceeding hasn’t disclosed in any other proceeding (also in arbitration).
Need for the increase in Conciliation Mechanism in India
- In the present scenario, the importance of conciliation is increased because in the present conditions The Indian court system is facing the problem of the rapid increase in a pending case and also there is a necessity of disposing of them and for a peaceful settlement, so conciliation is the best alternative for justice without any delay.
- Like the Himachal Pradesh high court accepted the predict of disposing of the pending case by mode of conciliation and insisting on pretrial conciliation in fresh case. This idea was based upon the mediation in Canada and Michigan. However, the said project had played great success in Himachal Pradesh.
The law commission of India in the various time stated in his reports (77th & 13th) has admired the project in Himachal Pradesh and also advise other states to follow the same path. Maharashtra also Mumbai High court has taken initiative towards conciliation proceeding for Himanchal Pattern i.e. pre-trial conciliation. Therefore, it is necessary to study conciliation as an organized procedure for settlement of a dispute by the use of formal means proceeding.
- As we can see that conciliation assumes importance in a commercial dispute relating to the trans-border performance of a contract with the relevancy of foreign law or that of multiple jurisdictions. It would be beneficial if it actively promotes this Alternative Dispute Method process so that to improve the simplicity of doing business in India.
1) Independence and impartiality [Section 67(1)]-
The conciliator should be impartial and independent. He should deal with the parties impartially and independently while he endeavours to reach a peaceful settlement of their disputes.
2) Fairness and justice [Section 67(2)]-
The principle of conciliator must be fairness and justice. He must keep in mind that the right and obligation of the parties, the usage of the trade concerned, and the circumstances surrounding disputes, including any previous business practices between the parties.
3) Confidentiality [Section 70]-
4) Disclosure of the information [Section 70]-
When the conciliator found any information which relates to the dispute from a party, he should disclose that information to the other party. The reason behind this provision is to enable the other party to present an explanation which he might consider admire.
5) Co-operation of the parties with Conciliator [S. 71]-
The behaviour towards conciliators from the parties should be in good faith and must corporate with the conciliator. They have to submit the written material, providing evidence and come for a meeting whenever the conciliator request for this process.
Conciliation better than other modes of ADR
Here is how Conciliation better than other modes of ADR:
In former days where it was concluded that arbitration was a cheap, unexpansive, and successful remedy.
In the case of Guru Nanak Foundation v. Rattan Singh & Sons. It was observed:
There are at least three advantages if the parties can reach a reasonable settlement of their disputes through conciliation, viz.
1) Quickness: – The party can allocate their time and energy for also in better and their useful work.
2) Economic: -Rather spending hard-earned money on litigation, one can invest their money for better uses.
3) Social: -The party come out happily to their places and feel relief from quarrel, hostility, and also in certain cases, the impact of these cases goes to their next generation.
Also, By going through conciliation, the benefit is: –
- Conciliation ensures party autonomy.
- Conciliation ensures the expertise of the decision-maker.
- Conciliation is time and costs well organized.
- Conciliation certifies confidentiality.
- Through conciliation, NHAI settled arbitration claims worth over 13,000 crores.
The National highway authority of India has settled arbitration claims wort 13,000 crores through conciliation by reducing its liability through conciliation since FY 18 as it moves aggressively. NHAL working in fast mode to resolve all disputes by conception believing that this mode not only reduces the legal annoyance of both the parties through long process of arbitration process but money given in arbitral case remains unlooked-for revival of the private sector.
In one interview NHAL Chairman Sukhbir Singh Sindhu had said that national highway building authority will settle their majority of arbitration cases through the method of conciliation, to reduce its liability.
- RERA (Recently the Karnataka Real Estate Regulatory Authority) has set quick cell resolution of disputes between the builders and buyers through conciliation. Karnataka RERA on its website uploaded the full circular titled i.e. ‘Procedure for K-RERA Conciliation and Dispute Resolution Cell’.
Choosing a dispute resolution method is completely up to the parties. If parties agree to mutually amicable result then they must go for conciliation which is speedy simple cheap and also substantial rather than elsewhere. However, the success of conciliation is then possible when the skill of the conciliator and the proper environment, backed by framework facilities for maintaining the conciliation procedure and also depend on the mental attitudes of the parties. Opting conciliation is better because nowadays for healthy and mutual understating in business is very important as time plays a great role. Due to issues if people choose other modes to resolve their disputes other than conciliation, it consumes time because in the conciliation it is also optional that when you don’t satisfy with the conciliator you may go to the court to solved your disputes. Therefore, conciliation is better than other modes of Alternative Dispute Resolutions (ADR).