Introduction
“No civilised society leaves all issues of common concern to be resolved mutually between labour and management through a process of confrontation and conflict. The State shall lay down legislation to ensure a minimum protection of the interests of workers without waiting for trade unions to demand it.” [1]
-A. Flander
Hence, a step directed towards this was to recognize conciliation as a dispute resolution mechanism under the Industrial Disputes Act, 1947, furthered in the Arbitration and Conciliation Act, 1996.
Conciliation is a process whereby the conciliator incentivises the disputed parties to discuss their differences and facilitates them in arriving to a mutually accepted agreement within the legal framework of the Act. Conciliation as a mechanism is completely recommendatory in nature and procedure. Ergo, Wood mentioned, “the Conciliator is a catalyst aiming to lead the parties to an agreement without himself interfering in the actual decision making”.[2]
Who is a Conciliator?
A Conciliator plays a role of neutral adjudicator in facilitating the conciliation proceedings by assisting the parties with his knowledge, abilities and skills for a perspicuous flow of the process by initiating a positive dialogue, alleviate sour situations, clarify any misunderstandings, develop cordial environment necessary for solving the dispute harmoniously and most importantly help creating faith upon one another.
The conciliator shall win the confidence of both the parties, which will help him in better assistance as the parties would without any hesitation share their confidential information and thinking process with a belief that the same would not be disclosed to the opposite party without specific instruction in that regard.
Section 64 of the Act[3] deals with the appointment of the conciliators. When the invitation to the conciliation is accepted by the other party, the parties have to agree on the composition of the conciliation tribunal. In the absence of any agreement to the contrary, there shall be only one conciliator. The conciliation proceeding may be conducted by a sole conciliator to be appointed with the consent of both the parties, failing to which the same may be conducted by two conciliators (maximum limit is three), then each party appoints own conciliator ,and the third conciliator is appointed unanimously by both the parties. The third conciliator so appointed shall be the presiding conciliator. The parties to the arbitration agreement instead of appointing the conciliator themselves may enlist the assistance of an institution or person of their choice for appointment of conciliators. But the institution or the person should keep in view during appointment that, the conciliator is independent and impartial.[4]
[1] A. Flanders, The Fawley Productivity Agreements, (London: Faber and Faber), 1964.
[2] G. M. Kothari and A.G. Kothari, A Study of Industrial Law, 4th edn.Vol. 1, (Bombay: N.M. Tripathi Pvt. Ltd.,1987), p. 62
[3] S. 64, Arbitration and Conciliation Act, 1996.
[4] http://www.legalservicesindia.com/article/725/Principles-&-Procedure-of-conciliation-under-Arbitration-&-Conciliation-Act-1996.html
[5] S. 67(1), Arbitration and Conciliation Act, 1996.
[6] P.M. Bakshi, “Conciliation for Resolving Commercial Disputes”, 1 Comp. L. J. (Journal) 19 (1990).
[7] Haresh Dayaram Thakur v. State of Maharashtra, AIR 2000 SC 2281.
[8] S. 67(2), Arbitration and Conciliation Act, 1996.
[9] S. 70, Arbitration and Conciliation Act, 1996.
[10] S. 70, Arbitration and Conciliation Act, 1996.
[11] S. 65, Arbitration and Conciliation Act, 1996.
[12] S. 65, Arbitration and Conciliation Act, 1996.
[13] S. 66, Arbitration and Conciliation Act, 1996.
[14] S. 69, Arbitration and Conciliation Act, 1996.
[15] Sarvesh Chandra, “ADR: Is Conciliation the Best Choice” in P.C. Rao and William Sheffield ds.),Alternative Dispute Resolution 82 (Universal Law Publishing Company Pvt. Ltd., Delhi, 1997).
[16] S. 67, Arbitration and Conciliation Act, 1996.
Roshita Shrivastava, Second-year Student at NLIU Bhopal.