An ounce of mediation is worth a pound of arbitration and a ton of litigation!
–Joseph Grynbaum
WHAT IS CONCILIATION?
Conciliation is a method for out of court settlement of disputes in an amicable manner. It essentially brings together two disputing parties to the negotiation table to come to a mutual agreement which benefits both parties. The parties appoint a neutral third party as a conciliator who hears both sides and suggests mutually agreeable terms of a non-binding nature.
The process of conciliation is a universally accepted Alternate Dispute Resolution mechanism. In this, the neutral party or the conciliator tries to make the parties understand the pros and cons of each party’s respective arguments and come to a resolution that is profitable for everyone involved. Unlike courts and tribunals, the neutral third party can only encourage the parties to settle. However, the parties have complete autonomy to walk out of the discussions should they feel them be ineffective.
TO SUE OR NOT TO SUE: CONCILATE RATHER THAN LITIGATE
Where litigation is an effective method for asserting one’s rightful legal position and standing, it often causes irreconcilable differences among parties. While litigation decides which party has a better claim, the core of the dispute remains unsolved. The process of litigation itself many times becomes the cause of increased tensions and resentments especially when the matter is familial or matrimonial.
Under such circumstances, it is often better to have the parties sit down at a negotiation table where the primary objective is to preserve good relations rather than ascertaining who is right. The process of conciliation provides a plethora of benefits over litigation which are illustrated as under:
- Confidentiality: One of the major advantages of conciliation is the mandate of confidentiality. All that transpires behind closed doors of conciliation cannot be divulged without express authorization of both parties. Such a clause is extremely beneficial when dispute resolution involves the sharing of trade details by corporations. Or alternatively involves a matrimonial dispute where the parties would prefer that their personal life does not get dragged in open court.
- Expediency: Conciliation proceedings are essentially out of court proceedings and thus do not involve the tedious modus operandi that is associated with litigation. Instead, the parties can fix a time and place of their choosing and sit down to have a discussion with a third party.
- Cost-effectiveness: Since the process of conciliation side-steps the court proceedings, the expenses incurred in the same are greatly reduced. A time-efficient procedure implies that you don’t have to pay the lawyer’s fee for an extended period of time. Moreover, the costs of conciliation are equally shared among parties unless they agree otherwise.
Additionally, if conciliation fails the matter can always be taken back to the court for arbitration. This way the parties do not have anything to lose by opting for a pre-trial conciliation.
PROCEDURE FOR CONCILIATION
Amicable settlements refer to settlement proceedings where the parties retain their freedom and autonomy to decide and come to a solution. The amicable settlement enables the parties to resolve the dispute and bury the past, preserves the present relationship, and paves way for a better future. It involves the following steps:
- Bringing the parties to the negotiating table: When a dispute arises, one party may by invitation call the other party for a peaceful resolution of the same. Conciliation takes place only when both parties consent to the same.
- Determining issues: Once both the parties are ready to conciliate, the task of the parties and the conciliator becomes to identify the key issues and areas of disagreements. Bot parties may furnish written submissions to the conciliator for the same. This is an important step since this sets the foundation of any future proceeding that would take place.
- Establishing Facts: it is imperative for parties to clear out the facts of the situation before delving into dispute resolution. This allows the party to clear out any misunderstandings or miscommunications that may exist.
- Developing options for settlement: The conciliator helps the parties to explore the different choices of resolution that they may have. As a third party, he is able to provide a fresh perspective at the problem and promote a more flexible attitude towards peacemaking among the parties.
- Ultimately reaching an agreement: If the conciliator feels that the parties agree on certain issues than he can draw up an agreement with solutions which become binding on the parties once the sign it.
In the event that the parties are not able to reach a settlement, the conciliator may suggest them to opt for arbitration which can award a binding settlement.
CONCILIATION IN TIMES OF CORONA
The spread of coronavirus has led to an unprecedented situation and the Indian judiciary is battling with it too. The number of cases is on a continuous rise and the shutting down of courts has added them into the backlog pile. Although through virtual courts the judiciary is trying its best to dispense justice, only the urgent and COVID-related cases are being dealt with. This leaves a deluge of other cases that have been side-lined and postponed till the time normal functioning of the court does not resume.
Under such circumstances, a conciliation is a viable option for dispute resolution. It can easily be conducted online, thereby maintaining social-distancing guidelines, without compromising the integrity of the proceedings and the dignity of the parties involved. It would be a much more swift and economic option rather than waiting for courts to resume and in the meantime paying through the nose to the lawyers.
Since the remedies suggested in conciliation are tailor-made to the party’s needs and requirements, the present social and economic conditions can be considered while drafting a resolution for the same.
THE WAY FORWARD
Indisputably conciliation is a far effective and efficient method of dispute resolution than litigation and arbitration. A single integrated judicial system implies that there will always be a backlog of cases. With the ever-increasing number of pending cases, it becomes imperative to employ a more effective method for reaching an amicable solution where possible. It would be naïve to suggest that all cases that come to court can be settled through ADR, however most cases, whether civil, commercial, or familial, contain a possibility of negotiation it is the duty of the courts to explore that possibility.
A mandatory pre-trial conciliation or mediation session could be an enormous step in battling the backlog of cases. The Himachal Pradesh High Court conducted an experiment regarding the same and it produced highly cogent results. The Himachal High Court reported a substantial decrease in the number of cases going to trial after this experiment.
The Himachal model can be followed by the other courts of the nation as well as mandating a pre-trial ADR. This would help reduce the overall burden on courts and improve the quality of litigation in general.
REFERENCES
1. Section 62 & 67 of the Arbitration and Conciliation Act, 1996 (hereinafter called “the Act”)
2. Section 75 & 78 of the Act
3. Afcons Infrastructure Ltd. and Ors. v. Cherian Varkey Construction Co. (P) Ltd. and Ors., 2010 (5) AWC 5409 (SC).
