CS Professional · Arbitration, Mediation and Conciliation

Conciliation Proceedings and International Perspective of Conciliation: formula sheet

Full chapter guide

Key formulas

Invitation (Section 62(1)): Invitation = written + sent by initiating party + briefly identifies the subject of the dispute; An oral invitation does not satisfy Section 62(1).
Commencement (Section 62(2)): Commencement = date the other party accepts the invitation in writing; Sending the invitation does not start proceedings.
Rejection (Section 62(3)): Invitation rejected ⇒ no conciliation proceedings; No further step is needed to end the matter.
Deemed rejection (Section 62(4)): No reply within 30 days of sending (or the period in the invitation) ⇒ initiating party MAY elect to treat as rejection and must inform the other party in writing; It is the initiating party's choice. Silence is not automatic rejection. The 30 days run from the date of sending.
Mode (a): settlement agreement: Parties sign settlement agreement → proceedings end on the date of the agreement; Section 76(a). Under Section 73(3), a signed settlement agreement is final and binding on the parties and persons claiming under them.
Mode (b): conciliator's declaration: Written declaration by conciliator, after consulting parties, that further efforts are no longer justified → ends on date of declaration; Section 76(b). Consultation with the parties is required.
Mode (c): joint declaration of parties: Written declaration of the parties addressed to the conciliator → ends on date of declaration; Section 76(c). Both parties act together.
Mode (d): declaration of one party: Written declaration of a party to the other party and the conciliator, if appointed → ends on date of declaration; Section 76(d). One party can end the process alone.
Non-payment of deposits: Deposits not paid in full by both parties within 30 days → conciliator may suspend or declare termination in writing, effective on date of declaration; Section 79(3). The conciliator may direct equal deposits under Section 79(1) and (2).
After termination: Conciliator fixes costs and gives written notice; accounts for deposits and returns unspent balance; Sections 78(1) and 79(4). Costs are borne equally unless the settlement agreement provides otherwise (Section 78(3)).
General rule of Section 77: During conciliation proceedings: no initiation of arbitral or judicial proceedings on the dispute that is the subject-matter of the conciliation; Applies to the parties. The word is "initiate".
Exception: Proceedings allowed if, in the party's opinion, they are necessary for preserving his rights; The test is the party's opinion. Purpose is preservation of rights, not winning the dispute.
Scope conditions: Bar applies only if (1) conciliation proceedings are on, and (2) the dispute is the subject-matter of that conciliation; A different dispute between the same parties is not covered.
Related sections: Section 80: conciliator's role in other proceedings. Section 81: admissibility of evidence in other proceedings; Do not mix these with Section 77. They deal with the conciliator and with evidence.
Section 80(a): bar on other roles: Unless parties agree otherwise: conciliator ≠ arbitrator / representative / counsel of a party, in proceedings on the same dispute; Applies to any arbitral or judicial proceeding in respect of a dispute that is the subject of the conciliation.
Section 80(b): bar on witness role: Unless parties agree otherwise: conciliator shall not be presented by the parties as a witness in any arbitral or judicial proceedings; The wording is addressed to the parties, who cannot present the conciliator as a witness.
Exception: Bar applies 'unless otherwise agreed by the parties'; Agreement of the parties lifts the bar. Without it, the bar holds.
Related provision: Section 81: No reliance on views, admissions, conciliator's proposals or willingness to accept a proposal; Covers evidence in arbitral or judicial proceedings, whether or not they relate to the same dispute.
Core rule of Section 81: Parties shall not rely on or introduce as evidence, in arbitral or judicial proceedings, items (a) to (d); Applies whether or not the later proceedings relate to the conciliated dispute.
Four barred items: (a) other party's views or suggestions on settlement; (b) other party's admissions; (c) conciliator's proposals; (d) other party's willingness to accept a proposal; Learn them in this order. Items (a), (b) and (d) refer to the other party; (c) is the conciliator's own proposal.
Related rule: Section 80: Unless parties otherwise agree, conciliator cannot act as arbitrator or representative or counsel, and cannot be presented as a witness; Use it with Section 81 when the question also involves the conciliator.
Related rule: Section 67(4): Conciliator may make proposals at any stage; they need not be in writing or carry reasons; Explains what a conciliator's proposal under Section 81(c) can look like.
Cut-off date: 23 October 2015 = commencement of the Arbitration and Conciliation (Amendment) Act, 2015; Test the date on which the arbitral proceedings commenced, not the contract or dispute date.
Old arbitration rule: Arbitral proceedings commenced before 23-10-2015 → 2015 amendments do not apply; the related court proceedings also stay outside them, whenever filed; Subject to the opening words: unless the parties otherwise agree.
New arbitration rule: Arbitral proceedings commenced on or after 23-10-2015 → 2015 amendments apply, along with related court proceedings; This is clause (b), the positive limb of Section 87.
Party autonomy: Parties may agree that the amendments apply even to an earlier arbitration; Needs agreement of the parties, not a unilateral choice.
Source of Section 87: Inserted by Act 33 of 2019, w.e.f. 23-10-2015; The insertion is retrospective in effect.
UNCITRAL Conciliation Rules, 1980: Procedural rules for ad hoc conciliation, adopted by the parties by agreement; They are not a statute. They apply because the parties choose them.
UNCITRAL Model Law on International Commercial Conciliation, 2002: Model statute that countries may enact into domestic law; It is a template, not binding by itself.
Singapore Convention on Mediation, 2018: Treaty on enforcement of international settlement agreements resulting from mediation, in commercial disputes; Excludes settlements already approved by a court or enforceable as a judgment, and those enforceable as an arbitral award.
Section 81, Arbitration and Conciliation Act, 1996: No reliance on views, admissions, conciliator's proposals or willingness to accept a proposal, in arbitral or judicial proceedings; Applies whether or not the later proceedings relate to the same dispute.
Core comparison: Conciliation: facilitator who may propose terms | Mediation: facilitator who helps parties find terms; Under the Singapore Convention, both are treated as mediation for enforcement purposes.

Quick revision

Conciliation begins when the other party accepts the written invitation in writing (section 62).
If the invitation is rejected, there are no conciliation proceedings.
No reply within thirty days (or the period in the invitation) can be treated as rejection, if the initiator informs the other party in writing.
The conciliator acts in an independent and impartial manner and is guided by objectivity, fairness and justice (section 67).
The conciliator may make settlement proposals at any stage, and they need not be in writing or carry reasons.
Section 76 gives four ways to end conciliation: settlement signed, conciliator's declaration, joint declaration, or a party's declaration.
During conciliation, parties must not start arbitral or judicial proceedings on the same dispute, except where a party thinks it is necessary to preserve rights (section 77).
Unless otherwise agreed, the conciliator cannot act as arbitrator, representative or counsel, or be presented as a witness (section 80).
Parties cannot rely on the other party's views, admissions, the conciliator's proposals, or willingness to accept a proposal as evidence in other proceedings (section 81).
Costs are fixed after termination and are shared equally unless the settlement agreement says otherwise (section 78).
If deposits are not paid in full within thirty days, the conciliator may suspend or terminate the proceedings (section 79).
The 2015 amendments do not apply to arbitral proceedings commenced before 23 October 2015, unless the parties agree otherwise (section 87).

Common mistakes

Saying conciliation commences when the invitation is sent or received. Fix: For conciliation, remember that acceptance in writing is the trigger.
Treating oral acceptance as enough. Fix: Section 62 requires a written invitation and written acceptance.
Saying a party needs the conciliator's or the other party's consent to end conciliation. Fix: Remember Section 76(d): a written declaration of a party to the other party and the conciliator, if appointed, is enough.
Forgetting that the conciliator must consult the parties before declaring that efforts are no longer justified. Fix: Write 'after consultation with the parties' every time you cite Section 76(b).
Saying parties can never go to court during conciliation. Fix: Always write both parts: the bar and the exception for preserving rights.
Treating the exception as needing court approval. Fix: Quote the text: the proceedings must be necessary for preserving his rights "in his opinion".
Treating the bar as absolute and ignoring 'unless otherwise agreed by the parties'. Fix: Begin every answer with the rule and its condition. Always check the facts for an agreement of the parties.
Saying the conciliator cannot act as arbitrator in any dispute at all. Fix: Clause (a) is tied to the dispute that is the subject of the conciliation proceedings. Check that the dispute is the same.
Saying the bar applies only if the later case is about the same dispute. Fix: Quote the words: whether or not such proceedings relate to the dispute that is the subject of the conciliation.
Applying Section 81 only to court cases. Fix: The section says arbitral or judicial proceedings. Name both.

Exam tips

Always quote Section 62 sub-sections with the rule. A case-based answer should apply the rule to the facts, then conclude.
Check the facts for the word 'written'. Many questions hide an oral invitation or oral acceptance.
Mention the contrast with Section 21 if the question compares arbitration and conciliation.
For silence, state both the 30-day period and the 'other period specified in the invitation' alternative.
Quote Section 76(a) to (d) in order and name each mode in your own words. Marks are awarded per mode.
State the date of termination for every mode. Examiners look for it.
In case questions, identify who acted (parties, one party or conciliator) before naming the clause.
Link to Section 79(3) when facts mention unpaid deposits, and to Sections 78 and 79(4) for consequences.