What is the role of a Conciliator?

Introduction

Conciliation is a type of alternative dispute resolution (ADR) that seeks to assist parties in reaching a mutually agreeable settlement without the use of litigation or other formal legal processes. A conciliator is appointed as an impartial third party who facilitates the resolution of disputes between individuals or organizations. Their role involves fostering open communication, identifying underlying issues, and guiding the parties toward mutually acceptable solutions.

In basic terms, a conciliator functions similarly to a mediator, although their role is more proactive in providing solutions. While mediators generally enable discourse, conciliators may also provide recommendations and techniques for conflict resolution, making the process slightly more interventionist. The conciliator assists the parties in focusing on their interests rather than their viewpoints, guiding them to a solution that fits the needs of both sides.

A conciliator plays an important role in settling disputes through conciliation, which is an alternative dispute resolution (ADR) process. Conciliation is a voluntary, informal, and non-binding process in which a neutral third party, the conciliator, assists disputing parties in reaching a mutually accepted agreement. Unlike a mediator, a conciliator frequently takes an active role in presenting solutions, providing advice, and even making settlement recommendations.

Key Characteristics of Conciliator

A conciliator must possess certain key characteristics that are:

•  Neutrality and impartiality: They cannot favor one side and must treat all parties equally.
• Facilitator and Advisor: A conciliator facilitates discussions while also making suggestions or solutions for how to resolve the disagreement. This distinguishes them from mediators, who typically refrain from providing solutions.
• Confidentiality: The conciliator assures that the proceedings remain confidential. This permits the parties to speak freely, knowing that anything they say during the conciliation process cannot be utilized in court or other legal proceedings.
• Problem-Solver: The conciliator actively seeks to discover underlying issues and assists the parties in brainstorming solutions, frequently leading to creative or unexpected resolutions.
• Voluntary Process: Conciliation is an entirely voluntary process. Participation requires both partners' consent, and either may leave at any moment.
• Non-binding Recommendations: Unless both parties agree to accept them in writing, the conciliator's conclusions or suggestions are typically not legally binding.

Roles and Responsibilities of a Conciliator

1. An impartial facilitator[1]

An impartial third party who assists the opposing parties in communicating and working toward a settlement is known as a conciliator. In order to prevent either party from feeling unfairly treated or discriminated against, the conciliator must maintain objectivity throughout the procedure.

• Promoting Communication: The conciliator assists in creating a secure and transparent space where both parties can voice their needs, wants, and concerns.
• Fairness[2]: The conciliator makes sure that neither side controls the conversation and that each party has an equal chance to express their thoughts. The conciliator will not follow the provisions of Code of Civil Procedure or Indian Evidence Act which doesn’t mean that he will not follow the principles of justice and fair play but it is expected that he must be impartial and efficient in the conduct of conciliation proceedings and will go through it in transparent manner[3].

2. Recognizing and Examining the Conflict

A conciliator's ability to fully comprehend the issues at hand and the interests of each side is one of their main responsibilities. This includes:

• Active Listening: The conciliator pays close attention to what each party has to say, ensuring that they comprehend the underlying concerns (interests) as well as the overt issues (positions).
• Finding the Main Points: The conciliator assists both parties in recognizing and comprehending the main points of contention and frequently rephrases them to promote settlement.
• Analyzing Interests: Rather than concentrating only on each party's stance, the conciliator looks for their underlying interests. People may have a variety of interests, some of which may conflict, and it is important to recognize these in order to come up with solutions that work for everyone.

3. Making Recommendations and Solutions[4]

The active participation of a conciliator in offering solutions is a characteristic that sets their role apart. A conciliator may suggest certain solutions or compromises to assist the parties in resolving their disagreement, in contrast to a mediator who mostly facilitates discussions. The mediator:

• Provides Solutions: The conciliator suggests possible agreements or solutions that might meet the needs of both sides.
• Promotes Flexibility: They might offer original ideas or alternatives that the parties haven't thought about, promoting adaptability in the problem-solving process.
• Options Are Evaluated Objectively: The conciliator may provide answers, but they are not forced upon them. They assist the parties in determining the viability and reasonableness of the suggested solutions. In order to have a smooth functioning of the proceedings, the conciliator provides administrative assistance to the parties[5].

4. Reducing Tensions and Promoting Communication

Many conflicts start or deepen as a result of inadequate communication or emotional outbursts. In order to control these dynamics, the conciliator:

• Promoting Constructive Communication[6]: By encouraging open and courteous communication between the parties, the conciliator helps parties articulate their needs without resorting to confrontation.
• Managing Emotions: The conciliator assists parties in controlling their emotions and preventing the dispute from getting worse in emotionally charged situations (such as family conflicts or job complaints).
• Closing Gaps: The conciliator assists parties in comprehending one another's perspectives and intentions, frequently assisting in closing perception gaps.

5. Providing clarification on legal or procedural matters

The conciliator may occasionally need to explain any legal or procedural facets of the conflict, especially in intricate conflicts involving contracts, laws, or regulations. The mediator:

• Describes Rights and Duties: The conciliator may assist the parties in understanding the legal framework or contractual duties pertaining to the dispute without offering legal advice.
• Assures Compliance: They guarantee that all contracts abide by all applicable laws and rules.

6. Handling Unbalanced Power

There can be large power disparities between the parties in many disputes, particularly those involving employment or consumers. In order to maintain process fairness, the conciliator is crucial in controlling these imbalances:

• Ensuring Equal Participation: The conciliator assists in making sure that both parties have an equal chance to voice their issues if one is controlling or not actively engaging.
• Protecting the Weaker Party: The conciliator makes sure that the process is fair and that the weaker party is not coerced into an unjust arrangement in cases where one party may be more vulnerable (such as an employee in a labor dispute).

7. Creating and completing the contract

The conciliator may help develop a written settlement agreement or memorandum of understanding (MOU) if they are successful in assisting the parties in reaching a resolution. The role of the conciliator consists of:

• Documenting the Agreement: The conciliator assists in making sure that the terms of the agreement are spelled out in detail, including the responsibilities and expectations of each side.
• Clarity: The conciliator makes sure that the agreement is comprehensive, understandable by all parties, and clear.
• Establishing Voluntary Acceptance: The conciliator makes sure that both parties voluntarily and uncoercively accept the parameters of the agreement.

8. Management of Confidentiality[7]

One of the fundamental tenets of conciliation is confidentiality. By guaranteeing the confidentiality of all information exchanged throughout the process, the conciliator promotes candid and open communication:

• Protecting Sensitive material: Unless both parties consent, the conciliator makes sure that any sensitive material shared during the conciliation process is kept confidential and isn't used in subsequent court cases.
• Establishing a Safe Environment: The confident feature makes it possible for both parties to talk about problems without worrying about the consequences.

In India, Section 75 of the Arbitration and Conciliation Act of 1996 states that the conciliator cannot be compelled to divulge statements made by the parties in conciliation procedures unless they consent.

9. Making Certain Voluntary Involvement

The conciliator makes certain that involvement in the conciliation procedure is entirely voluntary. This implies that if the parties believe the process is not working or if they disagree with the suggested solutions, they are free to leave at any time:

• Elucidating Voluntary Nature: The conciliator stresses that neither party is required to reach a settlement and that the process is voluntary.
• Respecting Withdrawal Rights: The conciliator makes sure that no pressure is applied and respects the option of any party to withdraw from the conciliation process.

10. Monitoring and Follow-Up

Once an agreement has been made, the conciliator may follow up to make sure that the provisions are being followed. This could include:

• Ensuring Compliance: Checking that both parties are completing their commitments as agreed in the settlement.
• Resolving Implementation Issues: The conciliator may intervene to promote more talks or changes if problems emerge during the agreement's implementation.

Court Rulings

1. Haresh Dayaram Thakur v. State of Maharashtra and Others[8]

Section 67, which establishes the duty of the conciliator, states in Subsection (I) that the conciliator must help the parties in an independent and unbiased way in their efforts to seek an equitable settlement of their disagreement. Subsection (2) states that the conciliator must be guided by the principles of objectivity, fairness, and justice, taking into account, among other things, the parties' rights and obligations, the usages of the trade in question, and the circumstances surrounding the dispute, including any previous business practices between the parties. Section 67, subsection (4), states that the conciliator may make proposals for a solution of the dispute at any time during the conciliation process. Such proposals do not need to be in writing and are not required to be supported by a statement of reasons. Section 69 specifies how the conciliator and parties might communicate, whether orally or in writing, as well as the location of the meeting, among other things. Section 70 includes a provision for the disclosure of information. It is stated, among other things, that when the conciliator receives factual information about the dispute from one party, he must disclose the substance of that information to the other party so that the other party can present any explanation that he deems appropriate. The proviso to the section states that if a party provides information to the conciliator under the condition that it be kept confidential, the conciliator shall not divulge that information to the opposing party. Section 72 states that each party may make recommendations for conflict resolution to the conciliator on his or her own initiative or at the conciliator's request. Section 75, which includes the confidentiality clause into the status, states that the conciliator and the parties must keep all matters relevant to the conciliation proceedings confidential, regardless of what is stated in any other law in force at the time. The settlement agreement will likewise be kept confidential, unless disclosure is required for implementation and enforcement purposes.

2. K.K. Verma v. Union of India[9]

The responsibilities of a conciliator under the 1996 Arbitration and Conciliation Act were at issue in this case. In this case, the Supreme Court made it clear that a conciliator's function is to facilitate rather than to make decisions. The Court emphasized that the conciliator may, if appropriate, offer settlement ideas but does not have the authority to force a resolution. It was noted that while the conciliator should help the parties come to a mutually agreeable resolution, they must remain impartial and neutral at all times as per section 67 of the Arbitration Act.

3. M/s. Rashtriya Ispat Nigam Ltd. v. M/s. M.V. A. K. Associates[10]

In this case, the Supreme Court addressed the question of conciliation and settlement when the parties are unable to reach an agreement despite the conciliator's best efforts. The Court clarified that the conciliator's job is to help the parties in settling their disagreements, not to operate as an arbitrator or adjudicator. If the conciliator is unable to reach a solution, the process should be terminated and reported to the appropriate court or tribunal. The Court emphasized that the process is voluntary and that any settlement reached is only by mutual consent of the parties.

4.  National Thermal Power Corporation Ltd. v. Siemens Atkeing GmbH[11]

The role of a conciliator in international commercial arbitration was examined in this case, with a focus on the need for voluntary conciliation under the Arbitration and Conciliation Act. According to the Supreme Court, the conciliator is essential in helping the parties resolve their disagreements while preserving their authority over the decision-making procedure. The conciliator should only provide suggestions for possible solutions and promote dialogues rather than getting overly involved or forcing answers.

The Court emphasized how crucial confidentiality is in conciliation processes and how the conciliator must remain impartial while honoring the party's desires.

5. State of Rajasthan v. M/s. Ferro Concrete Construction Pvt. Ltd.[12]

The procedural issues of conciliation were examined in this case, particularly in relation to the conciliator's authority to suggest terms of settlement. The Court talked about the conciliator's responsibility in assisting parties in focusing their disagreements and finding a mutually agreeable solution. In order to ensure that the process is cooperative and that the parties feel empowered to come to an agreement, the Court made it clear that the conciliator must serve as an impartial facilitator. The Court further stated that the conciliator should notify the court or arbitral tribunal if a solution cannot be reached.

6. Afcons Infrastructure Ltd. v. Cherian Varkey Construction Co. (P) Ltd[13].

In this landmark ruling, the Supreme Court of India underlined the fundamental responsibility of a conciliator in fostering conversation between parties and assisting them in reaching an acceptable settlement. The Court stated that the conciliator is expected to help the parties in identifying the issues at stake and exploring potential solutions. However, the conciliator should not impose a solution on the parties, as the goal is to assist them in reaching a mutually agreeable settlement.

The case said that the conciliator should stay unbiased, provide a conducive climate for bargaining, and assist the parties in understanding the strengths and weaknesses of their respective views.

7. Bharat Aluminium Co. V. Kaiser Aluminium Technical Services Inc[14].

In this decision, the Supreme Court considered the role of the conciliator in international business disputes. The Court noted that conciliation, unlike arbitration, is a voluntary process. The job of the conciliator is to assist the parties in identifying areas of agreement and disagreement, as well as to propose alternatives that may lead to a resolution. The Court stated that the conciliator must help narrow down the issues and bring the parties closer to a settlement without using coercive influence or judgment.

8. Hindustan Zinc Ltd. v. Friends Coal & Mineral[15]

In this case, the Supreme Court restated the role of the conciliator, emphasizing that the conciliator has no ability to make decisions for the parties. The Court underlined that a conciliator must simply operate as a facilitator, making proposals for resolution without excessively influencing the parties involved. The Court concluded that the conciliator's role is to assist the parties in identifying common ground and potential solutions, but it is up to the parties to voluntarily accept or reject these recommendations.

Conclusion

The conciliator's function is one of facilitation, assistance, and advice, not adjudication. They give the required skills to assist the parties in resolving their disagreement amicably, suggesting settlement options while ensuring that the process is voluntary and collaborative. By serving as a neutral third party, the conciliator establishes an environment in which parties feel comfortable discussing their concerns openly, resulting in more sustainable and mutually beneficial solutions. Importantly, the conciliator's impartiality, confidentiality, and flexibility are critical to the success of the conciliation process. When these principles are followed, conciliation can be an effective strategy for resolving disputes efficiently, lowering expenses, and preserving relationships between parties.

[1] The Arbitration and Conciliation Act, 1996 (Act 26 of 1996), s.67 (1).

[2] Id. at s. 67(2).

[3] Id. at s. 66.

[4] Id. at s. 67(3).

[5] Id. at s. 68.

[6] Id. at s. 69.

[7] Id. at s. 75.

[8] AIR 2000 SC 2281.

[9] (2001) 2 SCC 9.

[10] (2003) 8 SCC 512.

[11] (2007) 2 SCC 44.

[12] (2009) 4 SCC 220.

[13] (2010) 8 SCC 24.

[14] (2012) 9 SCC 552.

[15] (2017) 8 SCC 149.

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