Report No. 77
We may now consider the desirability of the trial court initiating conciliation proceedings. It would also be necessary in this context to find out the stage at which efforts should be made for conciliation. It may be mentioned that the Code of Civil Procedure does not contain express provisions for this purpose. Under Order XXXIIA, which was inserted with effect from February 1, 1977, by Act 104 of 1976, a duty has been cast upon the courts to make efforts for settlement in suit relating to matters concerning the family. Apart from such disputes, as already mentioned, the Code does not contain any specific provisions.
We are dealing elsewhere in this Report1 with the question about the desirability of having conciliation councils or boards and the necessity of conciliation efforts by such councils or boards. We are concerned here with the question as whether a trial judge might himself undertake the role of a conciliator. In this respect, we are in agreement with the view expressed by the Law Commission in its Fourteenth Report that the trial judge could himself act in a way as conciliator.
The proper time for initiating and tactfully helping parties by arrive at a compromise would be when the clarification of the pleadings and the examination of parties under Order X, rules 1 and 2 take place. Sometimes, it happens that judges who try to induce the parties to come to an amicable settlement are misunderstood. That should not, as observed by the Law Commission in its Fourteenth Report,1 make a judge deny himself all initiative in the matter of suggesting a compromise or deter him in helping the parties in arriving at a settlement in suitable cases.
As observed by the Commission, a competent and experienced judge who has learned to make a proper use of the provisions of Order X will have no difficulty in perceiving cases pre-eminently suitable for a compromise. A few tactful words by the Judge at a suitable opportunity, without the appearance of taking a view on either side and without playing an unduly active role, may bring about the desired result. The promotion of a compromise in suitable cases should be left largely to the initiative and the personality of the judge and to the parties and their lawyers. The Bar can undoubtedly play a very useful and significant part in bringing about a compromise.
To reproduce a passage from the American Bar Association Journal3:
"Lawyers perform a real service to their clients and to society and the courts when they make settlements that are right settlements: where there are two sides to a case, where the issue may well be in doubt, where the facts are honestly in conflict or where the law is unsettled, there is always some figure which is fair to both sides. It should be the lawyer's aim to make such a settlement if he can."
1. See Chapter relating to Conciliation (Chapter 8, infra).
2. Fourteenth Report, Vol. 1.
3. Emery R. Buckner (May 1929), American Bar Association Journal, The Trial of Cases, cited in 14th Report, Vol. 1.