conciliation & mediation

CONCILIATION & MEDIATION

Mediation & Conciliation

‘Conciliation’ is limited to encouraging the parties to discuss their differences and to help them develop their own proposed solutions.

‘Mediation’ implies a stronger form of intervention. The mediator may be permitted to offer the parties proposals for settlement.

Functions & Process of Mediation

Mediation is a process by which a third party brings together the opposing groups, not only to iron out the differences between them but also to find an answer to problems or specified proposals and offer alternative suggestions.

Contd.

Mediation is an attempt by an outsider who helps the parties in discord in their negotiations. A mediator is also known as a ‘Confidential advisor’ or an ‘Industrial diplomat’. He suggests solutions based on his knowledge and experience, and if both the parties have confidence in him then they may agree to accept.

Contd.

Mediation contemplates affirmative and positive action by a third party to bring about a settlement of disputes.

“A Mediator does not exercise any compulsion; he cannot/should not undertake to decide what the parties do; he may give various suggestions, but certain evaluations & judgments must be left to the parties to decide for themselves”.

Kinds of Mediators

1. The eminent outsider

2. The non-governmental board

3. The board connected with some part of the governmental system of the country

Important points for a successful Mediation

1. Mediation can only work in a climate of consent

2. Mediator must be an impartial and unprejudiced person

3. Mediation should take place in a proper and conducive setting

CONCILIATION

‘It is a process by which representatives of workers and employers are brought together before a third person or a group of persons with a view to persuading them to arrive at an agreement by mutual discussion between them’

CONCILIATOR

The conciliator is a neutral party, who without using any force, seeks to find some middle course for mutual agreement between the disputants so that the deadlock is brought to an end at the earliest possible moment and normal peace restored.

He tries to bridge the gulf between the two contending parties; and if he does not succeed, he tries to reduce the differences as far as possible, by tendering advice to them and working out an amicable settlement.

He cannot suggest solutions but suggests alternative solutions

Uniqueness of Conciliation

A unique and essential characteristic feature of the conciliation process is it’s flexibility, informality and simplicity

A conciliator generally does not follow the same procedure in every case; in fact he makes adjustments to his approach, strategy and technique according to the circumstances of each dispute

Role of a Conciliator

As a Discussion Leader As a safety valve As a Communication link As an Innovator As a Sounding board As a Protector As a Fail-safe device

Contd.

As a Stimulator As an Advisor As a Face Saver As a Promoter of Collective bargaining

Conciliation Machinery

Conciliation officer: Under sec 4 of the ID act 1947, if the govt. thinks fit the it may appoint a conciliation officer for a specific area or even for a specific industry; to mediate in, and promote the settlement of industrial dispute.

The appointment can be either temporary or permanent in nature

Conciliation Machinery

Board of conciliation : under sec 5 of the ID act 1947, the govt. may also as the occasion arises, appoint a Board of Conciliation, constituting a chairman and two to four other members to promote the settlement of disputes.

The trade union party to the dispute may recommend the names of its representatives; so can the employers.

CONCILIATION PROCEEDINGS

The conciliation officer has a special obligation where the disputes relate to a public utility service.

In such a case, the conciliation officer must hold the conciliation proceedings in the prescribed manner

In the case of other industries his power is discretionary; i.e. “he may do all such things as he thinks fit for the purpose of inducing the parties to come to a fair and amicable settlement of the disputes.”

Proceedings

In order to have a settlement, a meeting of the reps of the parties; either jointly or separately must be convened at the earliest.

If a settlement is arrived at during the course of the conciliation proceedings, the conciliation officer must send a report together with a memorandum of settlement signed by the parties to the dispute, to the appropriate govt.

A settlement brought about by the conciliation officer is an administrative act and not a quasi-judicial act.

If a settlement is not reached, the conciliation officer immediately sends a full report to the appropriate govt. containing facts about the steps taken by him and the probable reasons for failure; also detailing the facts and circumstances of the dispute

The report of settlement or non-settlement has to be submitted within 14 days of the commencement of the conciliation proceedings, or within such shorter period as fixed by the appropriate govt.

Proceedings

Quasi judicial

having a partly judicial character by possession of the right to hold hearings on and conduct investigations into disputed claims and alleged infractions of rules and regulations and to make decisions in the general manner of courts <quasi–judicial bodies>

Proceedings

A conciliation proceeding is not concluded and is deemed pending till any one of the following conditions is fulfilled:

a) Where a settlement is arrived at, a memorandum of the settlement is signed by the parties to the dispute.

b) Where no settlement is arrived at, the report of the conciliation officer is received by the appropriate govt.

c) A reference is made to the court of enquiry, Labour court, tribunal or national tribunal during the pendency of the conciliation proceedings

Proceedings by the Board

The board has the powers of a civil court regarding the foll matters;

a) It can enforce the attendance of anyone and examine him on oath

b) It can compel a party to produce relevant documents & material objects

c) It can issue a commission for examination of the witnesses

Proceedings by the Board

The enquiry or investigation by the board is regarded as a judicial proceeding.

The board endeavors to bring about a settlement between the parties

In the event of settlement or non-settlement the board has to submit the report within 2 months of the date on which the dispute was referred to it, or such shorter time as may be fixed by the appropriate govt.