Law Relating to Conciliation as a Mode of Alternative Dispute Resolution

Must Read

Should the Exorbitant Amounts Charged for RT-PCR Tests be Refunded?

Introduction A plea has been filed in the Honourable Supreme Court of India seeking a refund of exorbitant amounts charged...

Should CCTV’s be Installed in the Police Station?

Introduction In a recent judgment, the bench led by Justice Nariman issued directions to both the state and Union Territory...

A Legal Analysis of the West Bengal Political Crisis on IPS Deputation

The Ministry of Home Affairs (MHA) has recently summoned three IPS officers of West Bengal (WB). The decision was...

Explained: Postal Ballot for NRIs

At the end of November 2020, Election Commission sent a proposal to the law ministry to amend the Representation...

Explained: Constitutional Provisions and Legislations With Regards to a Person with Disabilities

The world celebrates December 3 as International Day of Persons with Disabilities (IDPD). This day is also called World...

“Pro-Enforcement Bias” Towards Foreign Arbitral Awards Domestically, in light of Vijay Karia and Ors. V. Prysmian Cavi E Sistemi S.R.L and Ors.

International Arbitration faces challenges domestically due to unharmonized local laws for enforcement. Often it may occur that an award...
L&L Partners Law Offices
Since its inception in 1990 which coincides with India’s economic liberalization, L&L, formerly Luthra & Luthra Law Offices, has assisted numerous multinational corporations to set up their presence in India, and navigate the complex Indian legal system. Our new identity reaffirms inclusiveness and recognizes the contributions of its founder, partners, associates and support staff in creating a leading institution.

Follow us

The most important feature of the Arbitration and Conciliation Act, 1996 (“Act”) is that it provides an exhaustive and detailed framework for the conduct of conciliation proceedings. In Part – III of the Act, the legislature for the first time provided for a detailed statutory framework for the conduct of conciliation proceedings outside the Court.

The Conciliation Rules adopted in the year 1980 by the UNCITRAL were comprehensive enough and were conceived primarily in the context of dispute resolution in international commercial relations. The provisions in Part – III of the Act took the said Conciliation Rules 1980 as a Model for conciliation Rules, irrespective of whether the conciliation was domestic or international.

Part – III will apply to the conciliation of any dispute between the parties arising out of a legal relationship, whether contractual or not, where the parties agree to seek an amicable settlement of that dispute by conciliation; except where the conciliation of any particular dispute is barred by any law for the time being in force.[i]

A conciliation proceeding is initiated by a party sending to the other party a written invitation to conciliate. Once the other party accepts in writing the invitation to conciliate, the conciliation proceedings start.[ii] It is for the parties to agree as to the number of conciliators. Unless the parties agree that there should be two or three conciliators, there will be only one conciliator. The conciliators will in the conduct of conciliation, as a general rule act jointly.[iii]

Where the parties have not enlisted the assistance of a suitable institution or person, the parties themselves can agree on the name of a sole conciliator. Where the conciliation is with two conciliators, each party may appoint one conciliator. Where the conciliation is by three conciliators, each party may appoint one conciliator and the parties may agree on the name of the third conciliator, who will act as the presiding conciliator.[iv] Section 66 of the Act specifically provides that the conciliator is not bound either by the Code of Civil Procedure, 1908 or the Indian Evidence Act, 1872.

The role of the conciliator is to assist the parties independently and impartially in their attempt to reach an amicable settlement of their dispute.[v] The conciliator is to be guided by the principles of objectivity, fairness, and justice. He should also consider the usage of the trade concerned, the circumstances surrounding the dispute, including any previous business practices between the parties.[vi] The manner of conducting the conciliation process is left to the conciliator. After taking into account the wishes of the parties, he may allow a party to present an oral statement if the party so wishes.[vii] At any stage of the conciliation proceedings, the conciliator may make proposals for the settlement of the dispute. The proposal need not be in writing and need not be accompanied by reasons.[viii]

The conciliator after his appointment may call upon the parties to present a written summary of their respective cases together with any relevant documents.[ix] After going through the summary of the case filed by each party, the conciliator may hold a joint meeting with the parties, where each party may make a brief oral representation of its case. Thereafter, the conciliator may also hold private meetings, often referred to as caucuses, with each party separately.[x] While doing so, he always tries to bring the parties closer to an agreement. Where the parties are so inclined, he may even suggest a settlement for acceptance by the parties. Each party may also submit to the conciliator suggestions for the settlement of the dispute.[xi] If the conciliator receives faculty information from any party, he may have an opportunity to present its explanation, if any.

However, any information required by the party to be kept confidential shall not be disclosed by the conciliator to the other party.[xii] There may be several rounds of separate meetings. If the conciliator is of the view that there is no scope for agreement between the parties or where the parties or any of them indicate its unwillingness to pursue conciliation, the conciliator may terminate the proceedings.[xiii] Where the parties reach an agreement on a settlement, the conciliator may hold a final joint sitting for drawing up and signing a settlement agreement by the parties.[xiv] When the parties sign the settlement agreement, it becomes final and binding on the parties and persons claiming under them. The conciliator also authenticates the settlement agreement and furnishes a copy thereof to each of the parties.[xv]

The conciliator and the parties keep confidential all matters relating to conciliation proceedings. They may treat the settlement agreement also as confidential except where its disclosure is necessary for implementation and enforcement.[xvi]

As a principal inherent in conciliation procedure, the conciliator and the parties are bound by certain discipline. Unless all the parties otherwise agree, the conciliator is stopped from acting as an arbitrator or as a representative of a party in any arbitral, judicial or other proceedings in respect of a dispute which is or has been the subject matter of conciliation proceedings in which he acted as a conciliator. The conciliator cannot also be presented by a party as a witness in any such proceedings.[xvii] There is also a bar on the parties relying on or introducing as evidence in any subsequent arbitral or judicial proceedings, the views expressed or suggestions made by either party in the course of conciliation proceedings.[xviii] In other words, any information about the conciliation proceedings, whether it has resulted in a settlement agreement or not is required to be kept confidential by all the parties and the conciliators.

The parties may initiate conciliation even during the pendency of arbitration proceedings involving the same dispute, without prejudice to their respective stands in those proceedings. If such conciliation succeeds, they have to report to the arbitral tribunal who may record the settlement in the form of an arbitral award.[xix]

Concluding the above-mentioned we can say that Conciliation is a non-adjudicatory ADR process, which is also governed by the provisions of the Act. There can be a valid reference to conciliation only if both parties to the dispute agree to have negotiations with the help of a third party or third parties either by an agreement or by the process of invitation and acceptance provided in Section 62 of the Act followed by the appointment of conciliator/s as provided in Section 64 of the Act. If both parties do not agree to conciliation, there can be no ‘conciliation’. As a consequence, as in the case of arbitration, the court cannot refer the parties to conciliation under Section 89, in the absence of consent by all parties. As contrasted from arbitration, when a matter is referred to conciliation, the matter does not go out of the stream of court process permanently. If there is no settlement, the matter is returned to the court for framing issues and proceeding with the trial.

[i] Section 61.

[ii] Section 62.

[iii] Section 63.

[iv] Section 64.

[v] Section 67(1).

[vi] Section 67(2).

[vii] Section 67 (3).

[viii] Section 67 (4).

[ix] Section 65.

[x] Section 69.

[xi] Section 72.

[xii] Section 70.

[xiii] Section 76.

[xiv] Section 73 (1) and (2).

[xv] Section 73(3) and (4).

[xvi] Section 75.

[xvii] Section 80.

[xviii] Section 81.

[xix] Section 30.

The Authors of this article, Sanjeev Kumar is a Partner and Anshul Sehgal is a Managing Associate in the Litigation & Dispute Resolution Team at L&L Partners Law Offices, New Delhi. They can be reached out at [email protected] and [email protected] The views expressed are personal. is now on Telegram. Follow us for regular legal updates and judgements from the court. Follow us on Google NewsInstagramLinkedInFacebook Twitter. You can also subscribe for our Weekly Email Updates. You can also contribute stories like this and help us spread awareness for a better society. Submit Your Post Now.


Please enter your comment!
Please enter your name here

This site uses Akismet to reduce spam. Learn how your comment data is processed.

Latest News

Punjab & Haryana High Court Orders Security To BJP Leader Alleged for Not Supporting Farmers Protest

The Order had come in the form of a Writ Petition filed by Tikshan Sood under Article 226 of the Constitution. The petition before...

Lahore High Court Outlaws Two-Finger Virginity Test

The Lahore High Court in Pakistan has outlawed the use and conduct of virginity tests, namely, the use of the “two-finger” virginity test and...

London Court Rejects Assange’s Extradition – What Happens Now? 

Earlier last week, District Judge Vanessa Baraitser, sitting in the Westminster Magistrates’ Court denied the Government of the U.S.A.'s request to the U.K. to...

Calcutta High Court Decides in Favor of Contractor as He Accidentally Pays an Excessively High Amount

Introduction The present writ petition has been filed for a writ in the nature of mandamus commanding the Respondents to revoke the Petitioner’s offer as...

Petition Filed in Delhi High Court Challenging the New Privacy Policy of WhatsApp

A petition has been raised before the Delhi High Court challenging the updated privacy policy of the instant messaging app, WhatsApp. It is accused of looking into the virtual activities of the users,

Bombay High Court Says Pleas Against the Rejection of Nomination Before the Polls Is Not Maintainable

Bombay High Court on Wednesday held that a candidate cannot challenge his nomination by filing a writ petition before a court prior to the polls after his nominations have already been rejected by the Returning Officer (RO) for the Panchayat elections of January 15.

Bombay HC: It Will Be Difficult if Civic Bodies Don’t Take Action on Illegal Constructions

The Bombay High Court said on Wednesday that if the Municipal Corporations do not take action on the illegal constructions, things will become very difficult. This observation was made by a bench comprising Chief Justice Dipankar Dutta and Justice Girish Kulkarni while hearing a PIL after the Bhiwandi building collapse on September 21st, 2020 which led to the death of 39 lives. Mumbai Thane, Ulhasnagar, Kalyan-Dombivli, Vasai-Virar, Navi Mumbai, and Bhiwandi-Nizampur corporations were filed as respondents.

Uttarakhand High Court Directed State Authorities To Frame SOP Regarding Kumbh Mela 2021

Noticing the commencement date of Kumbh Mela 2021 amid pandemic from 27 February 2021, the Uttarakhand High Court on Monday expressed concern with regard to organizing and conducting of the Mela and directed State Authorities to discuss and resolve the logistical problems which can come in organizing the Mela during the pandemic time.

Writ Petition Not Maintainable Against Mahindra Finance, Being a Purely Private Body: Allahabad High Court

The Allahabad High Court reiterated that Writ Petition against the purely private body is not maintainable and dismissed the petition which was filed against Mahindra Finance Bank as Arif Khan v. Branch Manager Mahindra Finance Sultanpur & Another.

Publication of Notices for Inter-Faith Marriages No Longer Mandatory: Allahabad High Court

The Allahabad High Court has passed a landmark judgment that likely brings relief to inter-faith marriage. The Court on Wednesday said that the mandatory publication of Notices of Inter-Faith marriages will now be optional to protect the Privacy and Liberty of the Couple. The Court observed that the publication of the notice would “invade the fundamental rights of liberty and privacy”. Therefore, it has made it optional for the couple, they can now request in form of writing to a marriage officer to publish or not to publish a notice regarding the marriage.

More Articles Like This

- Advertisement -