Introduction
Mediation and conciliation are more or less similar. These differ in to what extent the third party is involved. ADR (Alternate conflict settlement) is a technique that uses non-adversarial (out-of-court) methods to resolve legal disputes. ADR processes are less formal, more affordable, and quicker than the legal system. It encompasses negotiation, arbitration, conciliation, and mediation. Legal systems around the world recognise various alternatives to the judicial system. Alternate dispute resolution mechanisms refer to all of these strategies together. These conflict resolution procedures frequently assist the courts and offer original means of resolving disagreements. The civil procedure code Section 89 discusses conflict resolution techniques outside of court. Separate clauses (b) and (d) refer to mediation and conciliation as components of those procedures. Since a trial is more expensive, ADR is a cost-effective way to settle disputes. In general, ADR processes are more lucid than court processes. Although each of these processes is distinctive In its own way, they are frequently confused. As a result, it's critical to comprehend how the two differ to determine which procedure is most appropriate for your circumstances.
Mediation vs Conciliation
Mediation allows two parties to interact with each other and a third party (the mediator) to resolve their conflict. It is a kind of negotiation. It is a voluntary act. Mediation helps solve civil cases like marital, divorce cases, etc. In a mediation, the mediator’s role is essentially nonexistent. The parties agree to jointly appoint an unbiased third-party mediator who helps them for a mutually acceptable agreement. As a facilitator, the mediator encourages dialogue, and the parties agree to resolve the conflict.
The parties can choose to disregard the mediator’s decision. The parties make the decisions during mediation. It is not the responsibility of mediators to determine what is fair or equal, right or wrong.
Conciliation is the approach taken by the parties to settle their differences. They choose a neutral third party who will try to encourage them to agree on mutual conversation and discussion. It is forbidden for the parties and the conciliator to discuss private information or reveal any aspect of the conciliation to a third party. The conciliator serves as an advisor, offering various solutions to the issue. In a Conciliation process, confidentiality is guaranteed by law, whereas a Mediation process is based on trust.
Successful conciliation results in a settlement that can be enforced in civil court, whereas successful mediation is enforced in law.
Difference between mediation and conciliation in tabular form
| Parameters | Mediation | Conciliation |
| Meaning | A third party mediator will assist both parties in reaching a resolution when addressing disagreements between them. | When a neutral party is chosen to mediate a conflict by convincing both parties to come to an agreement, this is called conciliation. |
| Role | Facilitator | evaluator |
| Under | Code of civil procedure, 1908 | Arbitration and conciliation act, 1996 |
| Result | Enforaceble by law | Enforceable as a decree of court |
| Number | One mediator | One or more conciliator |
| Confidentiality | Based on trust | By law |
| Solution | Parties involved finds a solution | Conciliator gives solutions |
| Authority of third party | Shows Guidance | Shows authority |
| Type of process | Non statuary process | Statuary process |
| Nature | Voluntary | Compulsary |
What is mediation?
A non-binding and informal process for resolving disagreements, mediation is one of the alternative dispute resolution methods. The mediator serves as a go-between, assisting the parties in reaching a mutually agreeable resolution to their conflict. They are skilled Individuals, occasionally solicitors, who help the disputing parties come together at a neutral location to talk about their problems and attempt to negotiate a resolution. In cases of ongoing litigation, the court may choose the arbitrators, or the parties may choose the mediators with their cooperation. The mediator cannot force his opinions on the parties, but he can make suggestions and assist them in coming to an amicable arrangement.
Court referred mediation
If the court believes there is a chance for a settlement, it may send the parties to a mediator for mediation. Section 89 of the Civil Procedure Code of 1908 specifies procedures on how to refer to these cases. Divorce cases and any other cases under the negotiable instrument act of 1881 are diverted by the court to mediation.
Private mediation
In this type of mediation, a qualified professional serves as the mediator. The mediators can be appointed by the general public, government officials, business professionals, or anybody from the legal system to resolve a disagreement through mediation.
Features of mediation
The parties control the advisory mediation process.
- The mediator cannot persuade the parties to accept a decision. The mediator does not make decisions as opposed to an arbitrator or a court. Instead, the mediator’s job is to help the parties resolve their differences.
- Even if the parties have agreed to submit their differences to mediation, they are still entitled to end the mediation process at any moment following the initial meeting if they decide that continuing it will not serve their interests.
- Mediation is a confidential process
- The parties and the mediator are bound to keep the information relating to the case confidential.
- Mediation is an interest-based process
- The circumstances of the disagreement and the relevant law decide a case’s outcome in court litigation or arbitration. The parties’ commercial interests may also serve as a guide during a mediation.
Roles in mediation
Mediator
The mediator’s responsibility is to serve as an impartial third party who helps the parties interact. A mediator is always evaluative when they conduct analyses, assessments of the problems, and reality checks. A mediator is impartial and not a representative of any party.
Parties
The involvement of the parties varies depending on their goals and abilities, the function of legal counsel, the mediation model, the mediator’s style, and the environment in which the mediation takes place.
Authority
Having the full authority to negotiate and resolve the disagreement is one of the fundamental prerequisites for a mediation to be successful. If this is not the case, there is a phenomenon known as the “empty chair”, according to Spencer and Brogan.
MEDIATOR'S QUALIFICATIONS
A mediator must have a few fundamental attributes, including the following:
- Sincere, and unwavering faith in the mediation process
- The dedication to pursue the greatest ideals of honesty and integrity in behaviour.
- Neutral and non-judgmental.
- The capacity to listen intently, actively, and patiently.
- Good communication skills.
- An open mind.
ETHICS OF A MEDIATOR
1. Keep conflicts of interest at bay
2. Knowledge of professional role limitations and competency
3. Strive for neutrality
4. Ensure Voluntary Participation
5. Uphold Confidentiality
6. Prevent injury.
Parties sometimes come to a deadlock during mediation. An impasse in mediation refers to and comprises a standoff or an obstacle. There are several potential causes of the impasse. It can be becausee the parties are at odds. It could also be brought on by a lack of imagination, an unwillingness to accept practical solutions, an overuse of creativity, etc.
Types
- Substantive impasse
- Emotional impasse
- Procedure impasse
METHODS TO END IMPASSE
The mediator must exercise ingenuity and apply appropriate tactics, which may include the following techniques, to break the deadlock.
(a) Reality testing
(b) brainstorming
(C)shifting the emphasis from the offer’s source to its terms.
Process of mediation
- Opening remarks by the mediator. The mediator welcomes everyone to the mediation, outlines its objectives and ground rules, and exhorts the parties to cooperate In resolving after the parties have been seated at a table.
- Opening arguments from both sides. The dispute and any related financial or non-financial repercussions are encouraged to be described by each side. Additionally, the mediator may hear broader suggestions for resolving the issue. It is forbidden for anyone to talk during another person’s speech.
- To clarify the issues, the mediator may invite the parties to answer directly to the opening comments.
- The private caucus is an opportunity for the mediator to speak alone with each side.
- The mediator brings the parties back together to negotiate directly. The mediator brings the parties together only after the settlement.
- If the parties reach an agreement, the mediator will likely put the summary in writing and ask each side to sign it. If the parties didn’t agree, the mediator will help the parties determine whether it would be fruitful to meet again later or continue negotiations by phone.
Types of negotiations
- Facilitative mediation
- Evaluative mediation
- Transformative mediation
- Med-arb
- Arb-med
What is Conciliation?
Conciliation is the resolution of differences without going to court. In this informal process, a conciliator—a third party—attempts to mediate a settlement between the disputing parties. Conciliation is mentioned under Part III of the Arbitration and Conciliation Act of 1996. It is a voluntary process in which the parties to the conflict agree to settle it through Conciliation. It is a flexible process that gives the parties the freedom to choose the venue, schedule, and terms of negotiations. Conciliators are trained third parties who assist disputing parties in understanding the issues at stake and their desire for an amicable resolution.
Features of conciliation
Party autonomy
The parties control the conciliation proceedings’ scheduling, language, venue, and format.
The choice of the conciliator belongs to the parties. A conciliator is not required to have any particular professional experience. The selection process is based on experience, professional and personal knowledge, availability, language and cultural aptitude. A mediator needs to be unbiased and independent.
Conciliation saves time and money
Conciliation proceedings are done quickly and cheaply because these are informal and adaptable.
Confidentiality
Parties agree to confidentiality. As a result, disputes are resolved, and information is kept discrete.
Types of Conciliation
- Informal Conciliation is when a lawyer and his client resolve their differences verbally on the phone, in writing, via email, through any other kind of technological communication, etc. Therefore, the lawyer and his client exchange questions and replies by email, telephone, writing, etc.
- Formal conciliation is when the conciliator is present, and the lawyer and client meet to discuss and attempt to resolve the conflict.
Stages of conciliation
- The process will begin if one party sends the other a written invitation to settle the dispute through conciliation.
- Submitting to the mediator’s statements. In response to the conciliator’s request, each party must provide a written statement about the conflict.
- The conciliator should receive a copy of each party’s statement.
- Evidence, documentation, or a visual depiction must support these claims. Sending the opposite party a copy of the same statement is required.
- The conciliator can arrange meetings for the parties and meet with them alone or jointly. Parties or mediators may decide where the meeting will take place. He can converse with the parties vocally or in writing as well.
In this view, the most effective “conciliators” are expert negotiators. Some conciliators work for both governmental organisations and various non-governmental organisations.
Any power imbalances are safely addressed by the conciliator.
The two most popular types are domestic and civil conciliation. One judge and two non-judge “conciliators” oversee both types of conciliation under the supervision of the court system.
A less complicated and more affordable alternative to litigation is civil conciliation, a type of dispute resolution for minor claims.
Although divorces are handled most frequently through domestic conciliation, other domestic conflicts, like the annulment of a marriage or the recognition of paternity, may also be addressed.
Main differences between mediation and conciliation in points
- Mediation is the process of resolving disputes in which a third party steps in to facilitate communication between the parties to resolve the conflict. On the contrary, conciliation refers to a procedure of resolving the disagreement between the parties in which a neutral third party offers the parties viable solutions to the problem.
- Mediation is recognised under the civil procedure code and conciliation under the Arbitration and Conciliation Act.
- In mediation, confidentiality is based on trust between the parties involved, whereas in conciliation it is determined by law.
- The mediator is a mere guide, and a conciliator has the authority to resolve based on his ideas.
- There can be one or more conciliators in contrast to mediators.
- Mediation is enforceable by the court of law, and conciliation acts as a decree under the law.
Conclusion
Mediation and conciliation are types of ADR services used to resolve a dispute instead of going to court. These are cheap and faster than court proceedings. These methods are used in villages too as a means of resolving disputes between village people by the head of the village. Even though mediation and conciliation are used synonymously, they are quite in contrast to each other. Knowing about these services will give you knowledge on what method to select for what type of conflict.
