A case for institutionalising Conciliation

The rapid evolution of the thematic contours and practical utility of conciliation makes out a case for a distinctive legislative treatment of the process. Conciliation has no longer remained an aside or an appendage of the arbitration process, but has got inseparably intertwined with the mainstream judicial process. For this precise reason, comprehensive codification of all matters concerning conciliation is the need of the hour.

Conciliation v. Mediation

The need for a separate legislation also springs from the fact that conciliation is one of the most widely deliberated yet highly confused conceptions. Alternative Dispute Resolution (ADR), arbitration, conciliation, mediation and settlement are all interchangeably employed, not just by commoners. but also by the legal fraternity. In this backdrop, it is important to bring out the subtle, yet real distinction between mediation and conciliation.

While the role of the mediator is merely facilitative, the conciliators’ role is interventionist and proactive. As per section 73 of the Arbitration and Conciliation Act, 1996, when it appears to the conciliator that there exist elements of a settlement which may be acceptable to the parties, the terms of a possible settlement shall be formulated. Thus, the conciliator is no less than an inquisitorial quasi-judicial authority.

Former Chairperson of the Law Commission of India Justice M Jagannadha Rao remarkably explained the marked difference between the two conceptions. The Mediation Training Manual published by the Mediation and Conciliation Project Committee of the Supreme Court also explains the distinction by depicting it in a detailed chart.

Thus, conciliators are a class by themselves as opposed to mediators and other sections of ADR functionaries.

Life beyond the 1996 Act

It is popularly perceived that conciliation as a legally recognised process traces its legislative origins to the enactment of the Arbitration and Conciliation Act, 1996 that was devised on the lines of the UNCITRAL Conciliation Rules, 1980. The name of the 1996 Act and several sections therein refer to conciliation. In fact, an entire part (III) is dedicated for conciliation and the role and responsibilities of conciliators. Thus, the 1996 Act is often perceived to be sole and complete code on conciliation.

That conciliation has a thematic life beyond the 1996 Act merits deeper deliberation. Hence, there is a need for exploration of the distinctive legislative treatment and institutionalisation of conciliation by separating it out from the bundled regime of the 1996 Act.

Conciliation and the Industrial Disputes Act

The term conciliation is used in all about sixty-eight times in a pre-independence era legislation - the Industrial Disputes Act, 1947 (ID Act) - the first and perhaps only legislation in India that institutionalises conciliation. The Conciliation Officers and Board of Conciliation referred to in this law have well-defined roles and responsibilities, with the State as a passionate participant in the process of conciliation – right from conception to conclusion. Given the highly charged and politicised structure of our trade unions, and the bureaucratic and regimental structure of the State machinery, conciliation under the ID Act was not satisfactorily facilitated. Yet, the fact remains that the ID Act is first legislative attempt to institutionalise conciliation.

Family Courts Act

The preamble of the Family Courts Act, 1984 says that it is enacted with a view to promoting conciliation to secure speedy settlement of disputes relating to marriage and family affairs. As per Section 4 the 1984 Act, in selecting persons for appointment as judges, every endeavour shall be made to ensure that persons committed to the need to protect and preserve the institution of marriage and to promote the welfare of children, and are qualified by reason of their experience and expertise to promote the settlement of disputes by conciliation and counselling, are selected.

Thus, the 1984 Act infuses the concept and spirit of conciliation in the process of appointment of judges, which arguably is unique to a legislation of any jurisdiction. However, the 1984 Act has no substantive provisions dealing with the conciliation and roles and responsibilities of conciliators.

Conciliation under CPC

When the Code of Civil Procedure, 1908 (CPC) was drastically amended in the year 1999, a new provision Section 89 was introduced to provide for out of court settlements. Unlike the 1996 Act (per section 62), there is no need under this CPC provision for any consent or consensus of the parties for referring any matter for settlement. The subjective satisfaction of the court alone is sufficient for referring any matter for arbitration, conciliation, judicial settlement (including settlement through Lok Adalat) or mediation.

Conciliators as a class

Except for the ID Act, the roles and responsibilities of conciliators across all statutes are identical. However, conciliators are not organised or recognised as a class or cadre. Given this lacuna, there is no dedicated institutionalised attention bestowed this discipline. Unlike the Chartered Institute of Arbitrators in the United Kingdom, we have no formal institutions instituted by the legislative or the judiciary for conciliators. The various legislations that deal with conciliation are silent on its institutionalisation. The Legal Services Authorities Act, 1987 too has no mention of this aspect.

Vital aspects such as confidentiality, professionalism, disciplinary aspects, remuneration, rights entitlements and responsibilities of conciliators can be regulated only by way of a distinct legislative instrument.

The United States has constituted the Federal Mediation and Conciliation Service (FMCS), the largest public agency for dispute resolution and conflict management, providing mediation services and related conflict prevention and resolution services across private and public domains. However, in India, except under the ID Act, a pre-independence era legislation, we don’t see the State playing any proactive role in structuring an institutional framework for conciliation.

Conclusion

The institutionalisation of conciliation alone can instil professionalism and dedicated attention to this discipline. The legislature must seriously invest in the idea of formulating a legislation in this regard. Pending legislative recognition, the Legal Services Authorities at the apex level as also at the State levels, can consider formulation of Rules enabling institutionalisation of conciliation with well-defined roles and responsibilities for the functionaries.

The author is an advocate practicing at the Karnataka High Court.