Appointment of Conciliator
Appointment of Conciliator
1. What is Conciliation?
Conciliation is an alternative dispute resolution (ADR) process where a neutral third party, called a Conciliator, helps the disputing parties to reach a mutually acceptable settlement. Unlike arbitration, the conciliator does not impose a decision but facilitates negotiation.
2. Appointment of Conciliator:
The appointment of a conciliator is a crucial step in the conciliation process. It establishes who will act as the neutral facilitator to help resolve the dispute.
3. How is the Conciliator Appointed?
a) By Agreement of the Parties:
Typically, parties include a conciliation clause in their contract, specifying how a conciliator is to be appointed.
The parties may agree on a single conciliator or a panel.
If parties agree on a name or a method of selection, that person is appointed.
b) By an Institution:
If the parties fail to agree on a conciliator within the stipulated time, the appointment may be made by a designated institution or authority.
For example, under many Arbitration and Conciliation Acts, if the parties fail to appoint a conciliator within a certain period, the Chief Justice or a similar authority may appoint one.
c) By a Court or Tribunal:
Sometimes courts have the power to appoint conciliators if the parties fail to do so.
4. Legal Provisions (Indian Context as example):
Under the Arbitration and Conciliation Act, 1996 (India):
Section 61 governs the appointment of conciliators.
If the parties fail to appoint a conciliator within 30 days after receipt of a written request for conciliation, the Chief Justice of the High Court or Supreme Court (or his designate) can appoint a conciliator.
5. Role of the Conciliator:
The conciliator assists parties in identifying issues and exploring solutions.
Unlike an arbitrator, the conciliator cannot impose a binding decision.
The process is voluntary and confidential.
6. Important Case Laws on Appointment of Conciliator:
a) Energy Watchdog v. CERC, (2017) 14 SCC 80
The Supreme Court of India emphasized the importance of the conciliation process as a quick, cost-effective way to resolve disputes.
It stressed the need for parties and courts to actively participate in the appointment process to facilitate resolution.
b) SMS Tea Estates (P) Ltd. v. Chandmari Tea Co. Ltd., AIR 1983 SC 75
Though this case primarily deals with arbitration, it laid down principles about appointment of neutral third parties in dispute resolution, emphasizing impartiality and consent.
The principles have been extended in conciliation contexts for appointing a neutral conciliator.
7. Practical Aspects:
Timeliness: Delay in appointment defeats the purpose of conciliation.
Neutrality: The conciliator must be impartial.
Qualification: The conciliator is often an expert in the subject matter or dispute resolution.
8. Summary:
| Aspect | Details |
|---|---|
| Who appoints? | Parties, Institution, or Court |
| When? | After dispute arises, usually as per contract or statute |
| Legal framework example | Arbitration and Conciliation Act, 1996 (India) |
| Role | Facilitate negotiation and settlement |
| Binding power? | No, parties must agree for settlement |
| Key Case | Energy Watchdog v. CERC |
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