Mediation’s is a process available to the parties involved in contract negotiations by which an outside party is called in by union and management to help them reach a settlement. The neutral mediator does not ultimately resolve the dispute, but instead tries to move the parties towards agreement by maintaining communication and suggesting alternative solutions to dead-locked issues. The mediator’s function is to provide a positive environment for dispute resolution by drawing on extensive professional experience in the field of labor management interaction. The mediator must possess thorough knowledge of the issues, and an ability to innovate solutions to problems. The mediator must be an effective communicator, know the importance of timing and most of all, have the confidence and trust of the parties. A mediator must possess attributes such as integrity, impartiality and fairness.
Conciliation 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 persuade them to come to a mutually satisfying agreement. The objective of this method is to settle disputes quickly and prevent prolonged work stoppages if they have already occurred. The essential hallmarks of this approach are:
- The conciliator tries to bridge the gulf between the parties, if possible.
- If he does not fully succeed, he tries to reduce the differences to the extent possible. He acts as a conduit through which message are passed from one side to the other, coupled with his own interpretations facilitating the understanding of disputing parties. To the extent possible, he tries to ‘clear the fog’ surrounding the issue.
- He persuades parties to take a fresh look at the whole issues, through a process of give and take and explore the possibility of reaching a consensus.
- He only advances possible lines of solutions for consideration by the disputants. He never tries to force the parties to accept his viewpoint. He never offers judgement on the issues. If parties feel that the suggestions offered by the conciliator are acceptable, they may strike a deal.
- The conciliator need not follow the same path in each case. The process of conciliation, therefore, has a certain amount of flexibility and informality built around it.
The conciliation machinery in India consists of the following:
a. Conciliation Officer
According to the Industrial Disputes Act, 1947, the Central and State governments can appoint a conciliation officer to mediate in all disputes brought to his notice. The officer enjoys the powers of a civil court. He can call and witness disputing parties on oath and interpret the facts of the case. He is expected to give judgement within 14 days of the commencement of the conciliation proceedings. His judgement is binding on all the parties to the dispute. The conciliation officer has a lot of discretion over the ways and means to be followed to bring about a settlement between the disputants. 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 disputes”.
b. Board of Conciliation
When the conciliation officer fails to resolve the disputes between the parties, the governments can appoint a Board of Conciliation. The Board of Conciliation is not a permanent institution like the Conciliation officer. It is an adhoc, tripartite body having the powers of a civil court, created for a specific dispute. It consists of a Chairman and two or four other members nominated in equal number by the parties to the dispute. The chairman who is appointed by the government should not be connected with the dispute or with any industry directly affected by such dispute. The board, it should be remembered, cannot admit a dispute voluntarily. It can act only when the dispute is referred to it by the Government. The board conducts Conciliation proceedings in the same way as conducted by a Conciliation officer. The board, however, is expected to submit its report within two months of the date on which the dispute was referred to it. The Boards of Conciliation are rarely constituted by the government these days. In actual practice, settling disputes through a conciliation officer was found to be more flexible when compared to the Board of Conciliation.