The litigants, in order to effectively manage their case mechanism, have to necessarily opt for Alternative Disputes Resolution (ADR) mechanisms that would suit to redress its problems. The ADR mechanisms available in India can be enumerated as follows: 1. Conciliation 2. Mediation 3. Lok Adalat; and 4. Arbitration. There are advantages and disadvantages in all the ADR mechanisms. Out of which, the settlement agreement arrived in mediation has no force of decree as available to Conciliation, Lok Adalat and Arbitration. Hence, mediation is not viable. CONCILIATION means a process by which the parties agreed to resolve their disputes on the terms agreed between them facilitated by a neutral person appointed by either of the parties undertaking that the terms of settlement shall be final, binding and enforceable upon them.
The Arbitration and Conciliation Act, 1996, more particularly, Part II, Sectios 61 to 81 deals with conciliation and recognizes the terms of settlement arrived at by the parties in conciliation proceedings as an Arbitral Award. The said Arbitral Awards becomes an Executable Decree which cannot be challenged. Section 89 of the Civil Procedure Code also recognizes Conciliation proceedings.
Conciliation applies to all disputes arising out of a legal relationship, whether contractual or not.
On arising of a dispute between the parties, at the interest of one of the parties to conciliate the dispute, the interested party to send an invitation in writing inviting the other party to resolve the disputes by conciliation. The invitation shall briefly identify the subject matter of the dispute. On acceptance of the invitation the conciliation proceedings shall commence. If the invitation is rejected there shall not be any conciliation proceedings. Similarly, if there is no reply within 30 days from the date of sending the invitation, it shall be deemed that the invitation is rejected. On the commencement of the conciliation proceedings and on the appointment of the conciliator the conciliator may request the parties to submit a brief written statement enumerating the disputes and the point of issues. The parties shall exchange the copies of their statements. On exchange of statements, the conciliator may request the parties to submit before him along with the necessary documents. During the submissions by the parties before the conciliator the conciliator shall assist parties to reach at an amicable settlement. The conciliator is not bound by the provisions of Civil Procedure Code or Evidence Act. On arriving at a settlement, the terms of settlement shall be reduced in to writing, singed by the parties and the conciliator. The said terms of agreement shall have the status and effect of an arbitral award passed under section 30 of the Arbitration and Conciliation Act, 1996. In case the parties fail to arrive at a settlement they may express the same in declaration before the conciliator and terminate the proceedings. In order to facilitate the conduct of conciliation proceedings, the parties may arrange for administrative assistance of a suitable institution such as CNICA.
This process is similar to mediation but the conciliator acts more as an 'inventor' of solutions which are presented to the parties with a view of getting them to agree as to how the disagreement can be resolved. The conciliation mediator frequently provides suggestions and ideas. Conciliation differs from mediation in that the main goal is to conciliate, most of the time by seeking concessions. Generally there is a mixture of fact-to-face and private caucuses. The conciliator meets with each party to separately prioritize a list of interests from most to least important. Then goes back and forth between the parties and encourages them to "give" on the issues one at a time, starting with the least important and working toward the most important for each party in turn. The parties rarely place the same priorities on all objectives, and usually have some objectives that are not on the list. The conciliator builds a string of agreements and help the parties create an atmosphere of trust which the conciliator can continue to develop into a ‘total’ mutually agreeable resolution.
The Council For National and International Commercial Arbitration (CNICA) is a premier ADR Body and promoted by leading ADR practitioners. It was formed on January 2004 at Chennai which is first of its kind in Tamilnadu. CNICA is a leading ADR service provider upholding the highest standards in the domestic and international ADR arena. The objective of the CNICA inter alia is to provide the best platform for ADR mechanisms. CNICA’s panelists consist of eminent legal practitioners, retired High Court and Sub-ordinate Judges, Engineer, Chartered Accountants, Corporate secretaries, Medical practitioners, Surveyors , Valuers, Architects, In- house lawyers, etcetra. CNICA has venue in the prime business district at Chennai (Madras) with five state of art hearing rooms. CNICA also provides 100% secretarial assistance for the hearings. The Venue is a fully loaded with all necessary latest technologies to facilitate hearings. CNICA boast of its exclusive ADR books and literatures in its library. CNICA has administered more than 10000 cases involving banking and financial disputes, so far.
The CNICA’s costs for settling the disputes through Conciliation are negotiable