CONCILIATION AS A NEW TOOL FOR RESOLVING DISPUTES By Muskan Sihag

It is a method of alternative dispute resolution where a conciliator is appointed for resolving disputes, who meets both the parties of the dispute separately and also together and ultimately attempts to find a solution which is in best fit to both the parties. Conciliation contrasts from arbitration in that the conciliation process has no legal standing, and the conciliator usually has no sanction to seek evidence or call witnesses, he/she usually writes no decision, and makes no award.

Conciliation differs from mediation is that in conciliation, most of the time the parties are in need of restoring or putting back together a relationship, either personal or business. Many a times the conciliator can act as a 'messenger' by talking to one party and the other participants separately and communicating ideas or proposals between one another. It is also possible to hold sessions by telephone in some circumstances.

Advantages of using conciliation:

• Conciliation procedures are substantially less costly than traditional litigation methods, since as a general rule the costs are spread equally among the parties. Additionally, there is no need for expenses to be incurred on having a dispute heard before courts at several levels.

• Conciliation certifies party autonomy.

• Disputes are resolved more swiftly and at times which suit the parties’ councils.

• The parties have the right to choose the most acceptable conciliation procedure best suited for them. 

• The parties themselves set the procedural directives for settling a dispute. 

• In contrast to public court proceedings, conciliation procedures are confidential, and all information collected by an mediator during such proceedings is not disclosed even in court.

• An agreement entered into with the help of a mediator has contractual force and binds the parties on both sides. The court may also approve an agreement as a settlement agreement. 

• In disagreement to a court decision, which only covers the range of matters set by the law, an agreement reached further to a conciliation procedure may provide for a much greater number of problems to be resolved.

These advantages may hold similarity with those of arbitration or mediation but a few major points such as enforcement of agreement in court and setting of procedural rules makes it a different way. 

Types of conciliation:

1. Expert determination is a conciliation process which involves the conciliator preparing a written opinion containing legal reference and analysis to the situation and also determines the risk of adverse consequences for both the parties. The mediator offers recommendations for suited ways of resolving the matters in dispute. The recommendation is made based on the documents and information provided on both sides of the parties, which also includes their initial contact with the intermediary. 

2. Next is the Facilitated negotiation which involves a conciliation process for which a mediator, who based on the preceding study of documents and information provided to him/her by the parties on both sides, acts as an expert to assist them to settle the dispute affably. The same time the mediator may also propose to the parties some specific ways to resolve the dispute which may also include agreeing to a written document i.e. contract. 

3. This one is a little different procedure from the above two mentioned. A Mini-trail is a settlement process during which both the parties with the assessment of the mediator first and foremost exchange their written opinion to one another and then the documents and information related therewith. After which an authorised representative of each party, in the presence of a mediator, attempts to resolve the dispute by forming an agreement which includes setting out the relevant circumstances of the matter. Under any circumstances if the parties fail to reach agreement, the mediator will provide them with his/her opinion which is likely to be the outcome of the case when referred to the court.

4. Last is the Mediation procedure- it is a conciliation process which takes the form of negotiation which are arranged by an intermediary or mediator who manages the negotiation procedure in respect to help the parties for settling their dispute by reaching an agreement which serves in the interest of both the parties to agreement. In this process the mediator not only puts forward to the parties a way for resolving the dispute but also assists them in reaching an agreement which is of advantage to both the parties.