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Conciliation Proceedings Under the Industrial Dispute Act
Alternative dispute resolution (ADR) provides options for settling conflicts if parties do not want to litigate their issues in court. There are many benefits to choosing ADR over litigation, including affordability, flexibility, and confidentiality. Forms of ADR include negotiation, mediation, and arbitration.
Another form that is available in some jurisdictions is conciliation. Conciliation has benefits that set it apart from other ADR options. India is among the countries that have included conciliation in their laws as a means for dispute resolution before escalating to litigation.
This article will discuss conciliation, specifically as it is applied by India’s Industrial Disputes Act (IDA).
What is conciliation?
ADR methods range from open discussions with no moderation from outside parties, such as negotiation, to more structured and mildly adversarial approaches closer to litigation, such as arbitration. Conciliation is somewhere in the middle, whereby a neutral third party is appointed to facilitate discussions between the parties in dispute. Unlike arbitration, the conciliator cannot make determinations or decisions regarding settlements or awards. However, unlike mediation, The conciliator can have greater control over proceedings, including recommending solutions and drafting settlement agreements.
The Industrial Disputes Act of India demonstrates the country’s view of conciliation as a way to manage relations between employers and employees amicably without resorting to litigation issues in an adversarial manner in India’s labor courts. Conciliation under the IDA aims to remove disparities between the parties, attempts to get parties to see the other side’s point of view, and encourages parties to come to a compromise that would benefit all involved as much as possible.
Conciliators under the IDA
Section 4 of the IDA describes the process for appointing a conciliator. A government authority or the disputing parties can select the conciliator. The appointment provides the conciliator with the same force as an ordinary court and obligates the conciliator to lead the proceedings to a resolution within 14 days of initiation. In writing, the conciliator can request an extension if they believe a settlement is possible if given more time for negotiations between the parties.
An IDA conciliator must oversee proceedings until a settlement is reached, investigating any issues that may help or harm this undertaking. Upon settlement, the conciliator must send a report on the proceedings and settlement to the relevant government authorities. If a settlement cannot be reached in the allotted time, the conciliator must report on this state of affairs, including possible issues and remedies.
How an IDA conciliation can end
As described above, an IDA conciliation proceeding under a conciliator can end with or without a settlement. Even before the deadline, if a conciliator feels an impasse, they can refer the dispute to the labor court or an industrial tribunal.
Another course of action could arise if the government authority feels that the conciliator is not acting in the parties’ best interests. In this case, a Board of Conciliation can be convened. This is a temporary body of two to four people that are appointed to take over from the conciliator. Once created, the board has two months to conduct proceedings.
Unlike conciliations under other regimes, conciliation settlements from an IDA proceeding is binding on all parties involved.
Protections during an IDA conciliation
To avoid undue pressure on either employers or employees during an IDA conciliation, certain protections are set out under the law. First, employees are prohibited from going on strike during conciliation proceedings and for seven days after such proceedings have concluded. On the employer side, they are prohibited from locking out workers from their facilities or establishments during proceedings and for seven days after the completion of the proceedings as well.
THAC is a world-class conciliation resource.
Although conciliation is not an alternative dispute resolution (ADR) method available in Thailand, parties here may find themselves in need of advice regarding conciliation if they are involved in a jurisdiction where it is. The Thailand Arbitration Center (THAC) is a world-class resource on all aspects of conciliation, so they can assist parties at any stage, from weighing conciliation vs mediation for their dispute to drafting conciliation agreements and settlements.
THAC is a dispute resolution center of the highest standard. Parties can rely on THAC for assistance in drafting ADR agreements and clauses and identifying and selecting the best ADR professional to act as a neutral third party in their proceedings, including specific subject-matter experts. With a convenient location in central Bangkok and state-of-the-art facilities, THAC is ideal for in-person and remote hearings, as we offer full administrative support and can facilitate online dispute resolution through our proprietary Talk DD platform.
For further information about ADR solutions, please feel free to contact us at [email protected] or +66 (0) 2018 1615.
