This article has been written by Nimisha Dublish of the Vivekananda Institute of Professional Studies (VIPS), GGSIPU, New Delhi. This article focuses on the difference between conciliation and negotiation as modes of Alternative Dispute Resolution (ADR).
It has been published by Rachit Garg.
Though litigation has been in practice for many years, it does not serve every client’s interests. Litigation is often considered expensive, unpredictable, slow and usually solves little. Courts are considered an essential institution that helps society avoid chaos, and their importance cannot be stressed enough. Several disputes can be solved without the intervention of judicial authorities. Conflicts of such nature need some specific form of formal guidelines to achieve and meet their ends. To reduce this burden from judicial authorities, the concept of dispute resolution comes into play. To help the parties reach an amicable settlement, Alternative Dispute Resolution (ADR) methods and techniques allow them to settle their differences. Now, ADR is widely accepted and has gained national as well as international recognition. Though these modes of ADR have been in existence long before the sophistication of civilization, they have only recently gained global recognition. Continuous efforts are made by the third party to resolve or come to a settlement in a dispute. Generally, this third party is a neutral party appointed with the consent of the disputing parties. ADR involves a vast range of legalities and aspects. In short, in today’s era, people avoid pooling vast resources for litigation and preferably go for ADR methods to resolve disputes between individuals or groups of individuals or organisations. Arbitration, mediation, conciliation, and negotiation are widely accepted methods of ADR.
This article deals with the difference between conciliation and negotiation.
A confidential, voluntary, and private dispute resolution method in which a person (neutral) is appointed to help the parties reach a settlement is called conciliation. Disputing parties are provided with an opportunity to explore and analyse the options provided by a third party to determine if a settlement is possible or not. The process is carried out by a conciliator, who meets with the parties together as well as separately in order to come to an amicable settlement. This is a flexible process, and decisions are taken by reducing tensions, improving communications, and adopting other methods. This is a risk-free method and is not binding upon the disputing parties until or unless they sign it.
A process wherein direct and indirect forms of communication are used and through which the parties to a conflict form a joint action aiming to resolve the dispute between them is called negotiation. The history of negotiation can be traced back to the era of monarchies, when the king used to negotiate at the time of war to prevent bloodshed. The scope of negotiation has increased with the passage of time. Negotiation overrides the bulky paperwork, excessive time consumption, delayed process, and expensive disadvantages of litigation.
The Arbitration and Conciliation Act, 1996, covers both domestic and international disputes pertaining to conciliation. As regards conciliation of an international nature, it is confined only to the commercial nature of disputes. The Act goes on to define international conciliation as proceedings related to a dispute between two or more parties where at least one party is foreign. A foreign party may be an individual (a foreign national), a company (incorporated outside India), or the government of a foreign country.
The rules given under the UNCITRAL Rules on Conciliation, 1980, are closely followed by the Indian legislators under Part III of the Act. These rules define conciliation as a method of amicably settling disputes that arise in the context of international commercial relations and the adoption of uniform conciliation rules by countries belonging to different legal, social, and economic backgrounds.
An amendment to the Code of Civil Procedure, 1908 (CPC) in 1999 enabled the courts to refer pending cases to ADR to reach an amicable solution. Ever since Section 89 was inserted in the CPC, a court can refer a case to arbitration, conciliation, or mediation, wherever it appears to the court that there are elements of a settlement that may be acceptable to the disputing parties.
In India, negotiations don’t have statutory recognition. There is no particular statute for negotiation as a mode of ADR. It is rather a form of self-counselling between the parties to resolve the dispute at hand. It is the simplest means for the redressal of disputes. The parties begin by talking to each other without the interference of a third party. Negotiation acts as a dialogue that is intended to resolve the dispute and produce an agreement to bring out the cause of action and bargain for collective advantage.
Role of a conciliator and negotiator
The main role of a conciliator is to reach an amicable dispute as written in Section 67 of the Act. As far as Section 80 is concerned, the conciliator strives to support the disputing parties in generating options and finding a solution that is compatible for both parties. The conciliator is not a person who decides for the parties; rather, he only supports them and helps them reach a common solution. Section 67(4) especially enables the conciliator to make proposals at any stage of conciliation proceedings for the settlement of disputes. To obtain all these, a conciliator must act independently and impartially and abide by all the principles of objectivity, fairness, and justice.
A negotiator is a person who represents his party, and his duty is to make the best deal possible for that party. The negotiator tends to use various forms of resolution techniques and other communication methods to bring the parties down to a common settlement. The main aim of all these arrangements is to reach an agreement that is fair and acceptable to the parties to the dispute.
Commencement of conciliation proceedings
The commencement of proceedings has been talked about under Section 62 of the Act. There should be a written invitation that has to be sent by either of the parties to the dispute. The parties can go ahead with the invitation only if the recipient party accepts it. The invitation shall be considered rejected if it does not get a reply within 30 days.
Appointment of conciliators
If both parties agree to the terms and conditions of each other then they can appoint a sole conciliator. If they don’t, then they can appoint two conciliators, one for each. If parties wish to choose and go for three conciliators, then they shall appoint one conciliator each, and the third conciliator can be decided mutually.
Submission of the written statement to the conciliator
The conciliator, at his own discretion, may ask for a written statement from both parties that includes facts and other related information about the case. Along with the conciliators, the parties are also expected to send this written statement to each other as well.
Conciliation proceedings’ rules and conduct
As per Section 67(3) and Section 69(1) of the Act, the conduct of conciliation proceedings is defined. The communication with the parties can either be oral or written or both forms as they may agree to. The conciliator may decide to meet together or separately.
The conciliator may ask for administrative assistance from an institution or a person if he feels the need. The consent of both parties is mandatory in order to seek administrative assistance. The conciliator can’t go ahead with the administrative assistance at his own discretion.
Negotiation is a voluntary process, and it is important to know whether or not both parties agree to negotiate. It begins with a signal of communication from one end showing the willingness to bargain. Before negotiation begins, it is important to determine when and where it will take place, along with who will attend the discussion and negotiation sessions.
Once it is established that the parties agree to go for negotiation, further arrangements are made with the third party. In this stage parties put forth their case and try to understand the vice versa situation as well. An equal opportunity shall be granted to the negotiating parties, and all clarifications and disagreements shall be spoken and heard thereabout.
Clarification of goals
After completing the second stage and hearing what all parties have to say, the viewpoints of the negotiating parties for this agreement need to be clarified further. A common ground shall be established. Clarification is the most crucial part of negotiation because if it is not put forth without any ambiguity, it will become difficult to come to a common resolution.
Negotiating towards a win-win situation
From here on, it becomes very clear that there is not always a win-win situation for the parties, but they should try their best to reach the most suitable solution. In this stage, the parties focus on ideas that can be termed a win-win outcome where both parties are satisfied.
The parties can reach a common solution only when they understand each other’s point of view along with their interest simultaneously.
Implementation of action
Once the parties have analysed all outcomes and probabilities and have reached a proper course of action, they should start working on its implementation so that the decision can be carried out.
Advantages and disadvantages – a tabular representation
|1.||Flexible because the process is informal.||The parties are not bound by the process.|
|2.||Expertise of conciliators in the disputed field helps to reach an amicable solution.||There is no avenue for appeal.|
|3.||Economic in nature as compared to litigation.||There are chances that the parties might not reach a settlement.|
|4.||If the parties are not satisfied with the proceedings, they can reach out to the court of law.||Reaching out to the court of law defeats the purpose of ADR.|
|1.||Being an informal process makes it flexible.||There are chances that parties to a dispute might not come to a settlement.|
|2.||Quick resolutions in comparison to litigation.||Lacks legal protection for the parties to the conflict.|
|3.||Takes place in a private environment.||Imbalance of powers between parties.|
|4.||Maintains a healthy relationship between the disputing parties|
Main difference between conciliation and negotiation – a tabular representation
|1.||Neutral third-party||Facilitator, Evaluator, and Conciliator||Facilitator, Negotiator.|
|2.||Level of confidentiality||As determined by law.||Based on trust.|
|3.||Legal perspective||It has a statutory existence.||It is not laid down in statutory provisions.|
There are various modes of ADR systems that exist, but we have mainly discussed the differences between conciliation and negotiation. Both methods are unique in their own way and can be used as per the parties’ requirements. It varies from dispute to dispute which method shall be used for resolving it. These methods aim to provide diverse techniques that can be used to help parties amicably resolve the dispute.
Frequently Asked Questions (FAQs)
What is the main disadvantage or limitation of conciliation?
The major limitation of conciliation is that it is not binding upon the parties to the dispute. There are chances that parties may not be able to resolve the conflict.
Why is negotiation used as a mode of ADR to resolve disputes?
Negotiation is considered the most informal and flexible form of ADR among other processes. Parties attempt to come to an agreement on the matters in dispute, either directly or through negotiators. It is generally used by private individuals involved in a dispute.
Is negotiation an informal form of ADR?
Yes, it is the most flexible and informal form of the ADR method. It is voluntary as well as non-binding on the parties.
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