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Q2. What is the role of a Conciliator.


Answer:
In conciliation proceedings, there is no agreement for arbitration. In fact, conciliation can be done even if there is arbitration agreement. The conciliator only brings parties together and tries to solve the dispute using his good offices. The conciliator has no authority to give any award. He only helps parties in arriving at a mutually accepted settlement. After such agreement they may draw and sign a written settlement agreement.
It will be signed by the conciliator. However after the settlement agreement is signed by both the parties and the conciliator, it has the same status and effect as if it is an arbitral award. Conciliation is the amicable settlement of disputes between the parties, with the help of a conciliator. Conciliation is a less frequently used form of ADR, and can be described as similar to mediation. The Conciliator's role is to guide the parties to a settlement.

The parties must decide in advance whether they will be bound by the Conciliator's recommendations for settlement. The parties generally share equally in the cost of the conciliation.

Offer for Conciliation: The conciliation proceedings can start when one of the parties makes a written request to other to conciliate, briefly identifying the dispute. The conciliation can start
only if other party accepts in writing the invitation to conciliate. Unless there is written acceptance, conciliation cannot commence. If the other party does not reply within 30 days, the offer for conciliation can be treated as rejected [Section 62]. All matters of a civilnature or breach of contract or disputes of movable or immovable property can be referred to conciliation. However, matters of criminal nature, illegal transactions, matrimonial matters like divorce suit etc. cannot be referred to conciliation.

The new Act has added new Chapter containing sections from 61 to 81 which deal with Conciliation proceedings to resolve the disputes. The New Act provides a detailed statutory framework for the conduct of independent conciliation proceedings outside the court. It also encourages the arbitral tribunals to use mediation, conciliation or other Alternative Dispute
Resolution (ADR) procedure during the arbitral proceedings to encourage settlement of disputes. It is based on the Conciliation Rules adopted by the UNCITRAL in 1980, which were conceived primarily in the context of dispute resolution in international commercial relations. Conciliation is an informal process in which the conciliator (the third party) tries to bring the disputants to agreement. He does this by lowering tensions, improving communications, exploring potential solutions and bringing about a negotiated settlement.
Conciliation is a philanthropic concept of resolving disputes through mediation and cannot be reduced to any specific definition. The dispute should arise within legal relationship whether contractual or not and to all proceedings relating thereto, but excludes all those disputes which are not required to be submitted to conciliation by virtue of any other law for the time
being in enforce.

The difference between conciliation and arbitration is that in conciliation the attitude is “win-win” as against the attitude of “win-lose” in case of arbitration. Conciliator tries to bring the parties together so that they can discuss their disputes and resolve and hence there is no award as such from the conciliator, whereas in the case of arbitrator, parties are required to give their own logic and arguments and after hearing both the parties the arbitrator gives the award.

Role of the conciliator is difficult than that of arbitrators and hence the conciliator should be a man of integrity, trust, confidence and above board so that parties should have total confidence in his impartiality. Conciliation is optional at present in the Act. But incase parties have agreed to resolve the disputes through Conciliation, they have to follow the mandatory provisions contained in sections 61 to 81. These sections provide application and scope, commencement of conciliation proceedings, number of conciliators and their appointment, procedures for conducting the conciliation proceedings, roles of the conciliators, etc


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