Conciliation

What is Conciliation

Conciliation is facilitated negotiation whose object is the consensual resolution of a dispute on terms that the parties agree upon themselves.

Although administration is not required for resolution, the parties and the conciliator may seek administrative assistance from a suitable institution or the person with the consent of the parties. JUPITICE facilitates administrative assistance for the conduct of conciliation proceedings.

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    Conciliation Stages

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Initiating the Conciliation

An Invitation by one party for a dispute to be referred to Conciliation. Conciliation Proceeding shall commence when the other party accepts the invitation.

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Appointment of Conciliator

Conciliator may be appointed by one of three ways:
(1) Directly by the disputing parties,
(2) By existing tribunal members (For example, each, each side appoints one arbitrator and then the arbitrators appoint a third),
(3) By an external party (For example, the court or an individual or institution nominated by the parties).

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Preliminary Meeting and submission of documents

It is a good idea to have a meeting between the Conciliator and the parties, along with their legal counsel, to look over the dispute in question and discuss an appropriate process and timetable.

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Hearing

The hearing is a meeting in which the conciliator listens to any oral statements, and can ask for clarification of any information. Both parties are entitled to put forward their case and be present while the other side states theirs. A hearing may be avoided however if the issues can be dealt with entirely from the documents.

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Settlement Agreement

When it appears to the conciliator that there exist elements of a settlement which may be acceptable to the parties, he shall formulate the terms of a possible settlement and if the parties reach agreement on a settlement of the dispute, they may draw up or request conciliator to draw up or take assistance in drawing up, and sign a written the settlement agreement. The conciliator shall authenticate the settlement agreement. In some countries Like India, it shall be final and binding on the parties and shall have the same status and effect as if it is an arbitral award on the agreed terms.

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Arbitration vs Conciliation vs Mediation

Arbitration

  • Quasi-Judicial Adjudicatory Process
  • Arbitrator(s) appointed by Parties through Agreement or Court
  • Governed by tailor-made Procedural Rules subject to Arbitration & Conciliation Act 1996 in India
  • Decision (Award) Legal Binding & Court Enforceable
  • Award is subject to Challenge on specified/ limited grounds
  • Adversarial in Nature as focus is on determination of Rights & Liabilities
  • Institutional Arbitration assistance available
  • A Formal Proceeding held in Private
  • More expensive than Mediation
  • Awards are recognizable & enforceable in 166 countries under The New York Convention 1958

Conciliation

  • In Conciliation, Conciliator plays a pro-active role and is a interventionist.
  • Quasi-Judicial Adjudicatory Process
  • Arbitrator(s) appointed by Parties through Agreement or Court
  • Governed by tailor-made Procedural Rules subject to Arbitration & Conciliation Act 1996 in India
  • Decision (Settlement) Same status & effect as if an Arbitration Award on agreed terms
  • Conciliator assist the parties in their attempt to reach an amicable settlement of their disputes
  • Less formal proceedings held in Private
  • Less expensive than Arbitration but expensive than Mediation
  • Fast than Arbitration but less than Mediation
  • Institutional Conciliation assistance available
  • Win-Win Solution
  • No Guaranteed outcome
  • Preserve relationships
  • Conciliation is generally employed in Civil Law countries

Mediation

  • It is a Negotiation Process and not an Adjudicatory Process
  • Procedures & Settlements not governed by any Statutory Provisions
  • Informal Proceedings in Private
  • Faster than Arbitration & Conciliation
  • Low Cost than Arbitration & Conciliation
  • Win-Win Solution
  • No Guaranteed outcome
  • Preserve relationships
  • "Singapore Convention on Mediation" signed by 53 countries