Protection of parties to conciliation- checks & balances
The conciliator cannot be a witness or cannot act as a representative or counsel of any party in any arbitration or court case on the same dispute. Further, any party cannot introduce as evidence in any arbitral or judicial proceeding, whether or not on the same dispute; views, suggestions, admissions or indications of the other party or proposals from the conciliator for an attempted settlement of the dispute when under conciliation. Moreover, the conciliator and the parties are obliged to keep all matters relating to the conciliation proceedings confidential except to the extent necessary for enforcement of the settlement agreement, if any, which is straightaway executable as a consent award or decree of the court.
Advantages/ Merits of Conciliation
The parties determine an acceptable solution to their own problems.
No decision is thrust or imposed on the parties that are not acceptable to any one of them.
Deliberations are private, confidential and informal.
Personal and business relationships are not affected.
It is faster and inexpensive.
In conciliation the parties neither give up their respective positions nor forego any legal rights or remedies. In case there is no settlement in conciliation, each side can continue to seek redress of their grievances in arbitration or court, as the case may be.
Since conciliation is strictly confidential and private, in the event no settlement is reached and the matter proceeds to arbitration or litigation, discussions or admissions in conciliation can never be used as evidence.
Progress of Conciliation in India
Unfortunately conciliation has not taken off in India as expected. The Government departments with the public sector enterprises, who are the highest litigant in India, have not shown the way. Motives are attributed to acceptance of lesser amount in full and final settlement of disputed claims while reaching an amicable settlement. The fear of incurring the wrath of the Vigilance Commission and audit objections hold back even honest enterprising Government officers from settling disputes without litigation or arbitration. A change of mindset in this regard is necessary.
