Conciliation: Part III

In one line

Part III, sections 61 to 81, is a complete statutory code of conciliation drawn from the UNCITRAL Conciliation Rules of 1980, and sections 61 to 73 carry its scope, commencement, appointment, procedure and the conciliator's role.

Part III is in force and applies as printed. The Mediation Act, 2023 enacted a substitution of sections 61 to 81 by its Sixth Schedule, but the provision carrying that Schedule has NOT been brought into force, and the Act's consolidated text still prints these sections unaltered.

Section 61: application and scope

61(1): save as otherwise provided by any law for the time being in force, AND UNLESS THE PARTIES HAVE OTHERWISE AGREED, this Part shall apply to CONCILIATION OF DISPUTES ARISING OUT OF LEGAL RELATIONSHIP, WHETHER CONTRACTUAL OR NOT, and to all proceedings relating thereto.

61(2): this Part shall not apply where by virtue of any law certain disputes MAY NOT BE SUBMITTED TO CONCILIATION.

The parallel with section 7(1) and section 2(3) is exact: the same "legal relationship, whether contractual or not", and the same preservation of any law making a dispute unfit for the process.

Section 62: commencement

62(1): the party initiating conciliation shall send to the other party A WRITTEN INVITATION TO CONCILIATE, BRIEFLY IDENTIFYING THE SUBJECT OF THE DISPUTE.

62(2): proceedings COMMENCE WHEN THE OTHER PARTY ACCEPTS IN WRITING THE INVITATION.

62(3): IF THE OTHER PARTY REJECTS THE INVITATION, THERE WILL BE NO CONCILIATION PROCEEDINGS.

62(4): if the initiating party receives NO REPLY WITHIN THIRTY DAYS from the date he sends the invitation, or within such other period as the invitation specifies, HE MAY ELECT TO TREAT THIS AS A REJECTION, and if he so elects HE SHALL INFORM THE OTHER PARTY IN WRITING.

This is the deepest difference between Parts I and III. An arbitration can be forced on an unwilling party, because it agreed in advance: section 8 refers the parties and section 11 appoints an arbitrator over their objection. A conciliation cannot. There is no pre-existing agreement to conciliate that the Act will enforce, and silence for thirty days may be treated as a refusal.

Sections 63 and 64: number and appointment

63(1): THERE SHALL BE ONE CONCILIATOR UNLESS THE PARTIES AGREE THAT THERE SHALL BE TWO OR THREE. Note that an EVEN number is permitted here, where section 10(1) forbids it in arbitration, because a conciliator decides nothing.

63(2): where there is more than one, they OUGHT, AS A GENERAL RULE, TO ACT JOINTLY.

64(1): with one conciliator, the parties MAY AGREE ON THE NAME of a sole conciliator; with two, EACH PARTY MAY APPOINT ONE; with three, each party appoints one and the parties MAY AGREE ON THE THIRD, WHO SHALL ACT AS THE PRESIDING CONCILIATOR.