The Conciliator's Role, and How a Conciliation Is Conducted

In one line

The conciliator collects each side's case, meets them together or separately, and may put forward his own proposals for settling, but he must tell each side what the other has told him unless it was given in confidence.

In exam wording: sections 65 to 72 of the Arbitration and Conciliation Act 1996 govern the conduct of a conciliation, section 67 defining the role of the conciliator and empowering him to make proposals for a settlement at any stage.

Section 65: the statements

Section 65(1): the conciliator, upon his appointment, may request each party to submit a brief written statement describing the general nature of the dispute and the points at issue. Each party shall send a copy to the other party.

Section 65(2): the conciliator may request a further written statement of the party's position and the facts and grounds in support, supplemented by documents and other evidence. Again each party shall send a copy to the other party.

Section 65(3): at any stage, the conciliator may request a party to submit such additional information as he deems appropriate.

Explanation: in this section and all the following sections of this Part, the term "conciliator" applies to a sole conciliator, two or three conciliators, as the case may be.

Note the drafting: "may request". Nothing here is compulsory in the way section 23 is for an arbitration. And note the repeated obligation to copy the other party, which is the first appearance of the transparency principle that section 70 completes.

Section 66: free of the Code and the Evidence Act

The conciliator is not bound by the Code of Civil Procedure 1908 or the Indian Evidence Act 1872.

Identical in effect to section 19(1) for an arbitral tribunal, chapter 320, and for the same reason: a settlement process cannot be run on the rules of a trial.

Section 67: the role, and the four sub-sections that define conciliation

This is the central section of Part III.

Section 67(1): the conciliator shall assist the parties in an independent and impartial manner in their attempt to reach an amicable settlement of their dispute.

Read the words carefully. He assists; the attempt is theirs; the outcome is an amicable settlement, not a decision. That single sentence tells you he is not an adjudicator.

Section 67(2): he shall be guided by principles of objectivity, fairness and justice, giving consideration to, among other things:

• the rights and obligations of the parties;
• the usages of the trade concerned; and
• the circumstances surrounding the dispute, including any previous business practices between the parties.

Compare section 28(3) for an arbitral tribunal, chapter 350, which requires it to take into account the terms of the contract and trade usages. The conciliator's list is wider and softer: it includes previous business practices between these parties, which no court would treat as governing a contract but which is exactly what makes a commercial settlement possible.