RESEARCH METHODOLOGY-

Doctrinal Research

HYPOTHESIS- Conciliation is fruitful medium to resolve the dispute without delay

RESEARCH AREA - The Scope of conciliation , Role of conciliator vis a vis justice
delivery system in India

DISCIPLINE

● Indian Constitution 1950

● The General Assembly of the United Nation “s Rules of Conciliation through a
Resolution on 4th Dec.1980
● UNCITRAL
● Arbitration and Conciliation Act 1996

RESEARCH FOCUS. Conciliation procedure in India in present scenario and challenges

thereof

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 Table of content
Topic…………………………………………………..…..Page No.

1. Primary judicial effort toward conciliation; ………………………...7 to 9

1.1 The origin and history of conciliation

1.2 Definition and Meaning of conciliation

1.3 International convention on conciliation

1.3. Concept of conciliation under Indian legal System and gradual Development

1.4 Role of Himachal pradesh, 13th and 77th Law commission Report and
development of ADR in india

2 Conciliation under The Arbitration and Conciliation Act, 1996 ……...10 to

17

2.1 Meaning of conciliator Principles of conciliation

2.2 Legal provisions Under the Act on conciliation process

2.3 Conciliation vis-à-vis Arbitration

2.4 Advantages of conciliation

3. Conciliation under the Civil Procedure Code, 1908………....…..17 to 17

4.Case laws relating to Conciliation……………………………….……...18 to 19

5.Conclusion and way forward…………………………………….………20 to

20

4
Glossary……………………………………………………………...……..21 to21

Introduction

“It is the spirit and not the form of law that keeps justice alive’.

WE are living in one of the most ancient democracies of the world. We have been known for
having a very refined crystallized constitution which aims and aspires to strengthen the principle
of rule of law . The basic principle of rule of law is to provide justice to all without any
discrimination . It also imbibed in its speedy and fair trial because justice delayed is justice
denied.Article 21 and 39 A of Indian constitution specially secures access of justice and speedy
trial for the people in India.The Article 39A of the Indian Constitution clearly states that The
State shall secure that the operation of the legal system promotes justice, on a basis of equal
opportunity, and shall, in particular, provide free legal aid, by suitable legislation or schemes or
in any other way, to ensure that opportunities for securing justice are not denied to any citizen by
reason of economic or other disabilitiesSo, to implement their orders, the Parliament came up
with various alternative dispute Resolution (ADR) methods such as arbitration, conciliation,
mediation etc to strengthen the judicial system of the country. Not only the Constitution , CPC
also provides Section 89 Order 10 Rule 1-A to 1-C to the parties to opt for ADR processes. In
recent years, ADR has gained worldwide recognition among the general public and also in the
legal world. It is a cost effective method to resolve disputes as trial is the expensive one. ADR
procedures are generally more flexible than court procedures. ADR provides a speedier
mechanism to resolve a matter in dispute rather than the court system.
.As far as my emphasis is concerned I would limit my analysis only to the concept of conciliation
therefore this paper of writing aims to bring into light the importance of conciliation in the Indian
legal system.
The concept of conciliation to resolve the dispute is not new for our country. It has a very
ancient origin in India . It started in village societies where respectable elderly people used to
resolve the dispute in an amicable manner.later on it developed from ancient to medieval age

5
during mughals and later on colonial period. This piece of writing basically aims to analysis the
scope of conciliation in indian legal system , history , development and present reality of
conciliation.it also emphasis the role of Himachalpradesh in the development of concept of
conciliation, the recommendation of 77th law commission's report and present arbitration Act
1996 in respect of conciliation .

In the last two or three decades, Alternative Dispute Resolving System i.e.ADR initiatives have
mushroomed in developing and developed countries alike. But despite their popularity, many
questions remain unanswered regarding their actual success in increasing efficiency and in
broader access to justice. Recent research on ADR in the United States and also our own
observations in some ADR methods as adopted in India suggests that participants are generally
pleased with the conciliatory, comprehensible, and flexible procedures of ADR. Through this
paper I am emphasizing that resorting to conciliation, directly or through a trusted common
person/ institution, is the only remedy to achieve early success. The basic aim is there should be
settlement between the parties & no party should feel as aggrieved instead of a lost & win
situation, there should be a won - won situation for both Parties.
The article is divided into three chapters first mainly to deal the history origin and gradual
development of conciliation around the globe and specifically in India second aims to bring in to
light the legislation in this regard and thirdly the judicial approach in term of conciliation in
addition to the suggestions for the better development of this mode to access justice without legal
complexities and lengthy time barrier.

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 Chapter 1

1.Primary judicial effort toward conciliation;

1.1 The origin and history Of conciliation

Conciliation is as old as Indian history. In Mahabharata when both parties were determined to
resolve the conflict in battle fields, Lord Krishna made efforts to resolve the conflict. Now also,
the panchayat system works in the villages. The Indian system places a lot of importance on
resolution of disputes by negotiation which is purely conciliatory. In the Indian perspective it has
been seen that the practice of amicable resolution of the disputes can be caught from the historic
times , when in the villages disputes were resolved between members of a particular relations or
occupations or between members of the same family was in practice in the ancient times. In the
villages still the panchayat decides approximately all the disputes between the people as in
earlier times the disputes were resolved by the elders.
AS far as conciliation around the globe is concerned The history and evolution of ADR is visible
from 12th century in China , England and America. . The best example where conciliation
played an integral role is of the highly politically sensitive case of the Beagle channel dispute
over the ownership of certain islands in the entrance to the channel between Chile and Argentina.
The mediator was the Vatican. The process was remarkable because it was flexible enough to
accommodate the changing political environments in both countries and the mediator used a
range of tools to great advantage. This process served to protect a fragile peace between the
countries and ultimately allowed them to create an agreement that has lasted until this day.
1.2 Meaning And definition of conciliation
The term conciliation is not defined in the Act of 1996. However, simply put conciliation is a
confidential, voluntary and private dispute resolution process in which a neutral person helps the
parties to reach a negotiated settlement. This method provides the disputing parties with
an opportunity to explore options aided by an objective third party to exhaustively determine if a
settlement is possible. Like arbitration, the Act covers both domestic and international disputes

7
in the context of conciliation. International conciliation is confined only to disputes of
“commercial” nature. As per the Act, the definition of international commercial conciliation is
1
The simplest meaning of conciliation is the settlement of the disputes outside the court .It is a
process by which the discussion between the parties are kept going through the participation of a
conciliator. Conciliation is one of the non binding procedures where an impartial third party,
known as the conciliator, assists the parties to a dispute in reaching a mutually agreed settlement
of the dispute. As per the Halsbury Laws of England, "conciliation is a process of persuading
parties to each an agreement".
Because of its non judicial character, conciliation is considered to be fundamentally different
from that of litigation. Generally Judges and Arbitrators decide the case in the form of a
judgment or an award which is binding on the parties while in the procedure of the conciliation
,the conciliator who is often a government official gives its report in the form of
recommendations which is made public.

1.2.International convention on conciliation

The UNCITRAL Rules on Conciliation, 1980 recognized “the value of conciliation as a method
of amicably settling disputes arising in the context of international commercial relations” and
that adoption of uniform conciliation rules by “countries with different legal, social and
economic systems would significantly contribute to the development of harmonious international
economic relations.”Accordingly, these rules were closely followed by the Indian legislators to
formulate conciliation rules under Part III of the Act. 2 Though it is to be noted that this article
aims to analyse the utility of concilliation in respect of family dispute specifically.

1
Resolution 35/52 (Conciliation Rules of the UN Commission on International Trade Law) adopted by the
General Assembly on December 4, 1980

2
Adopted by UNCITRAL on 23 July 1980, the UNCITRAL Conciliation Rules provide a comprehensive
set of procedural rules upon which parties may agree for the conduct of conciliation proceedings arising
out of their commercial relationship. The Rules cover all aspects of the conciliation process, providing a
model conciliation clause, defining when conciliation is deemed to have commenced and terminated and
addressing procedural aspects relating to the appointment and role of conciliators and the general
conduct of proceedings. The Rules also address issues such as confidentiality, admissibility of evidence
in other proceedings and limits to the right of parties to undertake judicial or arbitral proceedings whilst the
conciliation is in progress.

8
1.3.Concept of conciliation under Indian legal System and gradual
Development

Primary statutory steps toward concilliation

In India the concept of Conciliation was introduced in the statute of
● Industrial Disputes Act, 1947. The Conciliation is generally conducted by an officer
appointed by Government under Industrial Disputes Act, 1947. Industrial Disputes Act,
1947 provides provisions for the parties to settle disputes through Negotiation, Mediation
and Conciliation, for example Section 12 , Section 18 , etc. Alternate Dispute Resolution
plays a major role in the family disputes settlement.
● Section 5 of the Family Court Act, 1984 provides provisions for the association of
social welfare organizations to hold Family Courts under control of government.
● Section 6 of the Act provides for appointment of permanent counselors to enforce
settlement decisions in the family matters. Further
● Section 9 of the Act imposes an obligation on the court to make effort for the settlement
before taking evidence in the case .

Section 6 of the Act is linked to Section 9, which stipulates that it is the duty of the family court
to make eff orts for sett lement. Th is also has a resonance of Section 23 (2) of the Hindu
Marriage Act which stipulates that it shall be the duty of the court to make every endeavour
to bring about a reconciliation between the par-ties. A similar stipulation regarding sett lement
can also be found in Order 32-A, Rule 3 of the Civil Procedure Code. Th e concern of the
legislature while enacting the Family Courts Act has been to bring about reconciliation or, in the
alternative, an amicable sett lement3

In addition to all provisions referred above, Indian Contract Act, 1872 most importantly gives
a mention about Arbitration Agreement as an exception to Section 28 that renders an agreement
void if it restrains a legal proceeding. Alternate Dispute Resolution whether sorted for or not can
be easily inferred from presence or absence of the ‘Arbitration clause'.

3
Agnes Flavia " Family Law Marriage, Divorce, and Matrimonial Litigation "volume 2 2008

9
1.4 Role of Himachal pradesh, 13th and 77th Law commission Report and
development of ADR in india
Himachal Pradesh is the first state which remarkably took positive steps toward the development
of a robust system of conciliation for the purpose of speedy justice through amicable procedure
outside the court. The Concept of conciliation has received new dimension because of successful
Himachal experiment .The movement of conciliation of awareness of conciliation has started
long before, the only difference is, previously parties were willingly coming together & opting
for conciliation but now, the conciliation on Himachal pattern is a court induced conciliation,
making it mandatory for the parties to attempt a conciliation for settlement of their dispute &
approach the court if conciliation fails4
Later on law commission in its 13th report and further in 77th report appreciated the project of
himachal pradesh and recommended it to be the part of uniform statutory law.

Chapter 2
2. 1 Conciliation under The Arbitration and Conciliation Act, 1996 (“the Act”) is
based on the UNCITRAL Model Law on international commercial arbitration and conciliation.
While the Act was not intended to displace the judicial system, the new law ushered in an era of
private arbitration and conciliation. It was also the first time that a comprehensive legislation was
made on the subject of conciliation in India.Arbitration and conciliation Act 1996 is the final
outcome of the previous development which took the shape of uniform lawin in respect of
conciliation.

Meaning of conciliator

A conciliator in a conciliation proceeding is a neutral adjudicator whose role is to decide on the

course of the proceedings, aid the parties in reaching a settlement that is mutually beneficial and
4
Dr. Ujwala Shinde, Conciliation as an Effective Mode of Alternative Dispute Resolving System’’

10
to uphold and abide by the principles of fairness, neutrality, justice and objectivity while striving
to reach a settlement as well as during the course of the decision-making process. The
Arbitration and Conciliation Act, 1996 bestows upon the conciliator certain responsibilities and
provides for some guidelines that a conciliator has to follow. Unlike mediation, the conciliator is
pro-active in the conciliation process and autonomy is allowed to him/her on certain grounds.
However, that autonomy is limited unlike arbitration.

Kinds of Conciliation

● Voluntary Conciliation
● In this method parties can voluntarily participate in the process of conciliation for
resolving their dispute.
● Compulsory Conciliation

- If parties do not want to take the opportunity of voluntary conciliation then they can go
for compulsory conciliation. In this method, if the parties do not want to meet the other
party to resolve the dispute then the process is said to be compulsory. This method is
commonly used in labour cases.

Principles of conciliation

The procedure laid down in Part III of the Act reflects the following broad principles:
(1) non-adversary nature of conciliation proceedings – there is no claimant or plaintiff in
conciliation proceedings,
(2) voluntary nature of proceedings – any party can commence and
discontinue the proceedings,
(3) flexible procedure – the conciliator has the discretion to adopt
any procedural law to ensure speedy and inexpensive conduct of proceedings, and
(4)decisions are recommendatory – disputes are settled by mutual agreement and not by
imposed
decisions.

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The various aspects of a conciliator's role in conducting the conciliation proceeding has been
discussed below :

2.2 Legal provisions Under the Act on conciliation process

❖ According to section 63 of the Act, there could either be a sole conciliator or two or
three conciliators, according to the wishes of the parties. In case of more than one
conciliator, they shall work jointly and in cooperation with each other,
❖ According to section 64 of the Act, to conduct the proceedings of the conciliation, the
parties may appoint the conciliator or conciliators, if there are more than one. When there
are three conciliators, the parties shall appoint the two conciliators and they, in turn, shall
appoint the third conciliator. In the second part, the Act stresses that the parties may take
the assistance of a third party or institution in regards to the appointment of the
conciliator/conciliators. Such party may directly appoint the conciliator or recommend
his/her name to the parties for appointment. The condition that has been attached to this
clause is that while making the appointment, such party or institution shall keep in mind
such considerations as are required to ensure the neutrality and independence of the
conciliator. Also, the section stresses upon the fact that the parties and the conciliators
should not be of the same nationality.
❖ According to section 67 of the Act, -the conciliator shall maintain his independence and
impartiality and persuade the parties in a way to help them reach an amicable settlement.

-the conciliator should not only uphold the principles of objectivity, fairness and justice but
should also keep in mind the rights and obligations of the parties and various circumstances
surrounding the dispute.

-the conciliator may conduct the proceedings of the case in a manner that is appropriate in his
opinion. However, he should consider the circumstances leading to the case and the wishes of the
parties or any other requests of the parties that are related to the subject of the dispute and are
reasonable in the eyes of the law.

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-a settlement of the dispute can be proposed by the conciliator at any time when the proceedings
are still in force. Any such settlement proposition need not be in writing or accompanied by a
statement of reasons, necessarily.

❖ According to section 69 of the Act, the conciliator may communicate with the parties
orally or in writing. The communication could take place either individually or in groups
as suits the needs of the proceedings. The place of such a meeting shall be decided by the
conciliator in consultation with the parties.
❖ According to sections 70 and 75, confidentiality should be ensured from the ends of
both the conciliator as well as the parties. No information should be passed on to a third
party except in cases of enforcement or implementation of the conciliation proceedings.
❖ According to section 80 of the Act, a conciliator should not be an arbitrator or a
representative of the parties in any kind of legal proceedings in respect to a matter that is
subject of the dispute. He/she also cannot be presented as a witness for/against the parties
in any arbitral or judicial proceeding.

2.3 Conciliation vis-à-vis Arbitration

While arbitration is considered private when compared with the court system,
Conciliation is even more private than arbitration. As litigation and arbitration are both
means of adjudication, the judge and the arbitrator render their verdicts and impose them on
the parties. There are some difference between arbitration and conciliation which are as follows-

★ While the parties to an arbitration proceeding are given considerable freedom in terms of
deciding the venue, date, arbitrator, etc., they have no control over the decision
making process except in the case of award on agreed terms.In contrast, parties to a
conciliation proceeding have the privilege to negotiate and arrive at an amicable settlement with
the assistance of a conciliator in a less formal setting.

★ Secondly, while section 7(2) requires that an arbitration agreement be in writing,

13
there is no such express provision regarding conciliation in the Act. However, this does not hold
much relevance as the process of conciliation commences with the written offer and acceptance
to conciliate by the parties.7 Conversely, in arbitration, even in the absence of a
prior written agreement, if the parties appoint the arbitrator and proceed with arbitration, the
requirement of section 7(2) is taken as complied with.Explanation to section 1(2) of the Act
states that “the expression “international commercial conciliation” shall have the same meaning
as the expression “international commercial arbitration” in clause (f) of sub-section (1) of section
2” 3 Section 2(f) read with the explanation to section 1(2) of the Act.

Conciliation Procedure
Either party to the dispute can commence the conciliation process. When one party invites the
other party for resolution of their dispute through conciliation, the conciliation proceedings are
said to have been initiated. When the other party accepts the invitation, the conciliation
proceedings commence. If the other party rejects the invitation, there are no conciliation
proceedings for the resolution of that dispute. Generally, only one conciliator is appointed to
resolve the dispute between the parties.

The parties can appoint the sole conciliator by mutual consent. If the parties fail to reach a
mutual agreement, they can enlist the support of any international or national institution for the
appointment of a conciliator. There is no bar to the appointment of two or more conciliators. In
conciliation proceedings with three conciliators, each party appoints one conciliator. The third
conciliator is appointed by the parties by mutual consent. Unlike arbitration where the third
arbitrator is called the Presiding Arbitrator, the third conciliator is not termed as Presiding
conciliator. He is just the third conciliator. The conciliator is supposed to be impartial and
conduct the conciliation proceedings in an impartial manner. He is guided by the principles of
objectivity, fairness and justice, and by the usage of the trade concerned and the circumstances
surrounding the dispute, including any previous business practices between the parties.

The conciliator is not bound by the rules of procedure and evidence. The conciliator does not
give any award or order. He tries to bring an acceptable agreement as to the dispute between the

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parties by mutual consent. The agreement so arrived at is signed by the parties and authenticated
by the conciliator. In some legal systems, the agreement so arrived at between the parties
resolving their dispute has been given the status of an arbitral award. If no consensus could be
arrived at between the parties and the conciliation proceedings fail, the parties can resort to
arbitration.

A conciliator is not expected to act, after the conciliation proceedings are over, as an arbitrator
unless the parties expressly agree that the conciliator can act as arbitrator. Similarly, the
conciliation proceedings are confidential in nature. Rules of Conciliation of most of the
international institutions provide that the parties shall not rely on or introduce as evidence in
arbitral or judicial proceedings, such as -

(a) the views expressed or suggestions made for a possible settlement during the conciliation
proceedings;

(b) admissions made by any party during the course of the conciliation proceedings;

(c) proposals made by the conciliator for the consideration of the parties;

(d) the fact that any party had indicated its willingness to accept a proposal for settlement made
by the conciliator; and that the conciliator shall not be produced or presented as a witness in any
such arbitral or judicial proceedings.

Conciliation has received statutory recognition as it has been proved useful that before referring
the dispute to the civil court or industrial court or family court etc, efforts to reconcile between
the parties should be made. It is similar to the American concept of court-annexed mediation.
However without structured procedure & statutory sanction, it was not possible for conciliation
to achieve popularity in countries like the USA & also in other economically advanced countries.

Advantages of conciliation
➢ It is more flexible, inexpensive and informal.
➢ Parties are directly engaged in negotiating a settlement.
➢ Conciliation enhances the likelihood of the parties continuing their amicable business
relationship during and after the proceedings. The reason is that the parties are in a

15
 conciliatory mode, away from the hostile environment of a court or an arbitral tribunal
where exhaustive arguments take place and reach a mutually acceptable settlement done
volitionally, and in a congenial manner. Thus, the end result of a conciliation proceeding
is that both parties are relatively pleased with the final outcome.
In this we can say that the chances of an appeal after the conclusion of conciliation proceedings
are considerably lower as a mutual settlement is reached between the parties. However, there is
no judicial precedent establishing this.

➢ Conciliation mends relationships. It is an informal method of dispute resolution. It places

emphasis on peace and harmony over conflict, litigation and victory. It is the first step
and in any dispute between the parties if it does not work then the parties should resort to
arbitration. As arbitration in the modern times, though is considered a better means to
resolve disputes over litigation, has some negative points too because here also, a third
party decides on the behalf of the conflicting parties. Conciliation, on the other hand, has
no similarity with litigation as such; it gives a lot of scope for the parties in conflict to
resolve the disputes by their own will and determination. An ideal way of proceeding in a
case of a dispute would be first try resolving the dispute by conciliation and if that
doesn’t work resort to arbitration.
➢ Conciliation is unquestionably a better option than arbitration as the experience in the
past few years has shown that arbitration is neither inexpensive nor time saving. In cases
where court has been given the authority to review the outcome, the advantage does not
appear to be real on account of first spending time before the arbitration tribunals and
then in courts. Conciliation is a more amicable way to settle disputes without harming the
personal relations as well. Thus, the pros of Conciliation are categorically more than
arbitration which asserts my stand that it is for the better.

Reasons to uplift conciliation in India

The importance of conciliation in the present Indian court system is increased as courts are
facing the problem of mounting arrears of pending cases & there is a serious need of disposing of

16
them & for that amicable settlement, conciliation is the best alternative. The Himachal Pradesh
High court undertook the project of disposing of the pending cases by conciliation & insisting on
pretrial conciliation in fresh cases. This idea was based upon the mediation in Canada &
Michigan. The said project had great success in Himachal Pradesh.

The Concept of conciliation has received new dimension because of successful Himachal
experiment .The movement of conciliation of awareness of conciliation has started long before,
the only difference is, previously parties were willingly coming together & opting for
conciliation but now, the conciliation on Himachal pattern is a court induced conciliation,
making it mandatory for the parties to attempt a conciliation for settlement of their dispute &
approach the court if conciliation fails. In Maharashtra also Mumbai High court is taking
Conciliation As An Effective Mode Of Alternative Dispute Resolving System initiative for
Himachal pattern i.e. pre- trial conciliation Therefore it is necessary to study conciliation as an
organized procedure for settlement of dispute through formal proceedings.

Chapter 3
Conciliation under the Civil Procedure Code, 1908 (“CPC”) (court referred
conciliation)
As 1999 amendment to the CPC enabled the courts to refer pending cases to
arbitration, conciliation and mediation to facilitate early and amicable resolution of
Disputes. we can especially take the example of Order 32A of CPC 1908 which
basically aims to settle the dispute in respect of family affairs by conciliation Prior to the
amendment of the CPC, the Act did not contain any provision for reference by courts to
arbitration or conciliation in the absence of the agreement between the parties to that
effect. However, pursuant to the insertion of section 89 in the CPC, a court can refer the
case to arbitration, conciliation, judicial settlement or mediation, “where it appears to the
court that there exist elements of settlement which may be acceptable to the parties.”
Section 89 of the CPC empowers the court to formulate the terms of settlement and give

17
 them to the parties for their observation and after receiving the observations, reformulate
the terms of a possible settlement and refer the same for arbitration, conciliation, judicial
settlement or mediation. Once a court refers a case to conciliation, the provisions shall
not apply and the parties shall be bound by the provisions of the Act. This allows the
parties to terminate the conciliation proceedings in accordance with section 76 of the Act,
12 even if the dispute has not been resolved, thereby rendering the entire dispute
resolution process futile

Chapter 4
Case laws relating to Conciliation-

1. Haresh Dayaram Thakur v. State of Maharashtra and Ors. 5 while dealing with the
provisions of Sections 73 and 74 of the Arbitration and Conciliation Act of 1996 in paragraph 19
of the judgment as expressed thus the court held that-
"19. From the statutory provisions noted above the position is manifest that a
‘‘A conciliator is a person who is to assist the parties to settle the disputes between them
amicably. For this purpose the conciliator is vested with wide powers to decide the procedure
to be followed by him untrammeled by the procedural law like the Code of Civil Procedure or
the Indian Evidence Act, 1872’’.
When the parties are able to resolve the dispute between them by mutual agreement and it
appears to the conciliator that there exists an element of settlement which may be acceptable to
the parties he is to proceed in accordance with the procedure laid down in Section 73, formulate

5
2000 (3) SCR 1140

18
the terms of a settlement and make it over to the parties for their observations; and the ultimate
step to be taken by a conciliator is to draw up a settlement in the light of the observations made
by the parties to the terms formulated by him. The settlement takes shape only when the parties
draw up the settlement agreement or request the conciliator to prepare the same and affix their
signatures to it. Under Sub-section (3) of Section 73 the settlement agreement signed by the
parties is final and binding on the parties and persons claiming under them. It follows therefore
that a successful conciliation proceedings comes to end only when the settlement agreement
signed by the parties comes into existence. It is such an agreement which has the status and
effect of legal sanctity of an arbitral award under Section 74”.

2. In Mysore Cements Ltd. v. Svedala Barmac Ltd 6it was said that Section 73 of the Act
speaks of Settlement Agreement. Sub-section (1) says that when it appears to the Conciliator that
there exist elements of settlement which may be acceptable to the parties, he shall formulate the
terms of a possible settlement and submit them to the parties for their observation. After
receiving the observations of the parties, the Conciliator may reformulate the terms of a possible
settlement in the light of such observations. In the present case, we do not find there any such
formulation and reformulation by the Conciliator, under Sub- section (2), if the parties reach a
settlement agreement of the dispute on the possible terms of settlement formulated, they may
draw up and sign a written settlement agreement. As per Sub-section
(3) when the parties sign the Settlement Agreement, it shall be final and binding on the parties
and persons claiming under them respectively. Under Sub-section (4), the Conciliator shall
authenticate the Settlement Agreement and furnish a copy thereof to each of the parties. From the
undisputed facts and looking to the records, it is clear that all the requirements of Section 73 are
not complied with.

Some major challenges for successful conciliation procedure,

Although conciliation services are available to civil litigants through the innovation of Lok
Adalats (panels of conciliators) and Conciliation Committees, several problems remain unsolved.

6
2003(2) SCC 1028

19
 ● First, India generally lacks obligatory mediation such as early neutral evaluation utilized
in the United States which is especially useful when imposed shortly after litigation is
filed. processes in India require the consent of both parties, or the request of one party
and the decision by the court that the matter is suitable for conciliation.
● Second, the subject matter of disputes that may be sent to Lok Adalats is limited to auto
accidents and family matters.
● Third, the conciliation process normally involves the lawyers, not the disputing parties
themselves. This problem is particularly acute in writ proceedings in which the
government is the responding party, since counsel frequently claims to lack authority to
make decisions about terms of settlement.
● Fourth, current conciliation processes do not require the parties to meet and confer prior
to entering either traditional litigation venues or their alternatives. No joint statement of
the specific points of disagreement is required. The absence of meeting, conference
and/or joint statements requirement is required. The absence of meeting, conference or
joint statement requirements allows competing sides to remain insulated from one
another.
● Fifth, the Lok Adalats themselves have experienced a backlog, and some defendants
agree to conciliation as a way of further delaying the litigation process.
● Finally, there is no set time or point within the litigation process at which a decision is
made.

Suggestions and wayforward

Justice delayed, justice denied is one of the fundamental jurisprudence of law. Magna Carta of
1215 recognizes "To no one will we sell, to no one will we refuse or delay, right or justice." The
speedy justice system is one of the fundamental requirements of any society. Keeping that in
mind, when the Courts were overburdened with cases and the average time required for deciding
a lis increased substantially (apart from various other reasons also including the
cost-effectiveness), steps were taken to decrease the burden of Courts. Various specialized
Tribunals/Commissions were established under law. Similarly, Alternate Dispute resolution

20