When the parties come to a settlement upon a reference made by the court for mediation there has to be some public record of the manner in which the suit is disposed of and, therefore, the court has to first record the settlement and pass a decree in terms thereof and if necessary proceed to execute it in accordance with law. It cannot be accepted that such a procedure would be unnecessary. If the settlement is not filed in the court for the purpose of passing of a decree, there will be no public record of the settlement. It is, however, a different matter if the parties do not want the court to record a settlement and pass a decree and feel that the settlement can be implemented even without a decree. In such eventuality, nothing prevents them in informing the court that the suit may be dismissed as a dispute has been settled between the partis outside the court.
RECORD OF SETTLEMENT
Thursday, August 13th, 2009CONCILIATION
Thursday, August 13th, 2009Conciliation is a voluntary and non-binding process in comparison to arbitration and litigation. Any party may terminate conciliation proceeding at any time even without giving any reason. The other important difference is that parties control the process and outcome of the dispute. Parties give up control of the outcome and the conducting of the process in arbitration as well as litigation. Conciliation is a consensual process where litigation and arbitration are adjudicatory processes in which parties have no control on the outcome of the dispute or the process.
BUSINESS DISPUTE MANAGEMENT
Monday, August 10th, 2009ALTERNATIVE DISPUTE RESOLUTION – ARBITRATION AND CONCILIATION
Litigation is well a recognized system for settlement of dispute in India. The courts are financed by the State and have formal rules for settlement of disputes. The decision of the court is binding on the parties, but it is subject to appeal to the higher court. Judge is imposed on the parties by the system and parties have no choice to have a particular judge. The system is highly technical and formal and judge controls the process as well as out come of the litigation. The dispute is heard in the open court and any one can be present in the court to hear the dispute. The presentations are governed by the rules imposed by the statute/authority. Process is very costly and time consuming hence it is not suitable for business disputes.
Arbitration is a procedure in which dispute is submitted to an arbitral tribunal chosen by the parties which makes a decision on the dispute that is binding on the parties, subject to appeal on very limited grounds. Presentations by the parties are limited by the rules agreed by the parties. The arbitral tribunal controls the process and outcome of the dispute. Generally the hearing is in private and strangers cannot be present. Arbitration is generally intended to provide speedy economic and fair results.
Arbitration and conciliation
Saturday, August 8th, 2009}Arbitration and conciliation are time-tested, cost-effective alternatives to litigation. Arbitration is the submission of a dispute to one or more impartial persons for a final and binding decision, known as an “award.” Awards are made in writing and are generally final and binding on the parties in the case. Conciliation, on the other hand, is a process in which an impartial third party facilitates communication and negotiation and promotes voluntary decision making by the parties to the dispute. This process can be effective for resolving disputes prior to arbitration or litigation.
CONCILIATION AND COURTS
Friday, July 31st, 2009In litigation conciliation is well known as compromise settlement. Number of disputes are settled before adjudication in the courts by the parties with efforts of the judges and compromise decisions are recorded which bind the parties.
In Lok Adalat voluntary efforts are aimed at bringing about settlement of disputes between the parties through conciliatory and persuasive efforts, and provide speedy and inexpensive justice. Members of Lok Adalat act as conciliators. Lok Adalats are organised with financial assistance by the Govt. and monitored by the judiciary. Lok Adalats are very successful in cases relating to motor accidents, land acquisitions. Family disputes, mutation of land, encroachments on various land, bank loans, workmanship compensation and compoundable criminal offences. Conciliation process has been set in motion by Lok Adalat.
ROLE OF A LAWYER IN CONCILIATION
Friday, July 31st, 2009Conciliation can be applied with or without a lawyer. It reduces workload of the courts. It permits parties to choose lawyers who are specialised in the subject matter of the dispute. A lawyer is helpful in conciliation and has following role -
a) Identification of contentious issues.
b) Ex-position of strong and week points in a case.
LIMITATIONS OF CONCILIATION
Friday, July 31st, 2009ADR Techniques such as conciliation, negotiation and mini trials have the benefit of less time and less cost but there is no assurance that there will result in a settlement of disputes as these are non binding and voluntary modes. These techniques bring the parties together but the settlement is not compulsory. Any party may walk out of such proceedings at any time or may not agree even to a very fair settlement. It happens many times that for the respondent, it is a case of either total liability or no liability and to avoid liability he may refuse even a fair settlement.
ADVANTAGES OF CONCILIATION
Friday, July 31st, 2009(a) Parties control process and outcome:
In litigation and arbitration one party wins and other loose. But in conciliation both parties may be winners as decision is acceptable to both. Both parties have control on the decision in conciliation and until both parties agree to a proposal, the settlement agreement does not take place. The parties have control on the process of conciliation and they can choose the rules for conciliation as per their choice. The conciliation proceedings can be terminated by a written declaration of a party to the other party and the conciliator to the effect that the conciliation proceedings are terminated. It is a non-binding process and any party may walk out from conciliation proceeding at any time. This is unlike arbitration and litigation where decision can be made even if a party walks out.
LITIGATION, ARBITRATION AND CONCILIATION
Friday, July 31st, 2009Litigation is well recognised system for settlement of dispute in India. The courts are financed by the State and have formal rules for settlement of disputes. The decision of the court is binding on the parties, but same is subject to appeal to the higher court. Judge is imposed on the parties by the system and parties have no choice to have a particular judge. The system is highly informal and judge controls the process as well as out come of the litigation. The dispute is heard in the open court and any one can be present in the court to hear the dispute. The presentations are governed by the rules imposed by the statute/authority. Process is very costly and time consuming.
WHAT IS CONCILIATION
Friday, July 31st, 2009Conciliation, also known as mediation, is a non-binding procedure in which a neutral intermediary, the conciliator, assists the parties to a dispute to understand their respective positions and interests in relation to the dispute with a view to their agreeing voluntarily on a settlement of the dispute. The participants in the conciliation enjoy very considerable autonomy to agree amongst themselves the procedures that are to be followed. A number of its practices are encompassed within the term conciliation.