Alternative dispute Resolution (ADR) refers to when a resolution to a dispute
is sought out of court. The processes of arbitration, conciliation, and
possession proceedings are alternates for the court system. This is a voluntary
choice and a 3rd party is used to keep things neutral. It is generally
understood to include arbitration, mediation, and other "hybrid" procedures
wherein a neutral third party assists in resolving conflicts in lieu of formal
There are several reasons why these alternatives to
adjudication are supported. According to some, potential advantages of
alternative dispute resolution (ADR) include lower transaction costs since ADR
procedures can be quicker and less expensive than traditional court proceedings;
better ex post compliance with the terms of the resolution; and the creation of
resolutions that are more in line with the parties' underlying needs and
The various methods of ADR are Medola, Arbitration Mediation, Rent
a Judge, Lok Adalat etc. An experiment in family dispute resolution processes
gave rise to what might be the biggest change in civil practice since the
Federal Rules were enacted in 1938.
In fact, several pundits have issued a
warning that alternative dispute resolution (ADR) is increasingly replacing
adjudication rather than only serving as a supplement to it. ADR is becoming
more and more common in state and federal courts; litigants are using it on
their own initiative, and courts are providing it to litigants upon request.
This article extensively focuses on the Mediation and conciliation in the light
of their differences and how they are used interchangeably.
Mediation is Intervention; interposition ; the act of a third person who
interferes between two contending parties with a view to reconcile them or
persuade them to adjust or settle their dispute. In international law and
diplomacy, the word denotes the friendly interference of a state in the
controversies of others, for the purpose, by its influence and by adjusting
their difficulties, of keeping the peace in the family of nations.
Non-binding process wherein the parties to a disagreement get assistance from an
unbiased third party, known as a conciliator or mediator, in order to find a
mutually agreeable and satisfying settlement of the conflict.
mediation process, parties in disagreement enlist the aid of an impartial third
party to serve as a mediator. He is a facilitating intermediary who employs a
variety of methods, strategies, and abilities to assist the parties in reaching
a negotiated settlement without resorting to formal adjudication. He is not authorised to provide any legally enforceable conclusions.
The mediator serves
as a facilitator and, in certain mediation models, may also offer a non-binding
assessment of the dispute's merits if necessary. However, the mediator is not authorised to render any legally-binding adjudicatory rulings. The trace of
mediation can be found in ancient Hindu laws, Islamic laws and Roman laws.
The Yajnavalkya refers to three types of popular courts (Sharan, 1978):
- Puga: A group of people who live together in the same location, regardless of caste or occupation. They had the authority to make decisions in matters involving the local populace.
- Sreni: consists of individuals pursuing similar career goals. They were qualified to make decisions about issues pertaining to their trade specializations.
- Kula: A group of people from a specific community with the authority to decide social disputes.
India has long practiced mediation. Panchayat mediation has been used
historically to resolve conflicts within communities; it is still the preferred
method. During British administration, mediation became less popular, which
increased the number of conflicts and prolonged the adversarial judicial system.
The Code of Civil Procedure, 1908, mentions mediation under Section 89.
What happens during a Mediation session is mentioned below :
Introduction: The mediator establishes his neutrality, gives the parties an overview of the mediation procedure, and introduces himself. He starts the private dispute settlement procedure after outlining the basic rules.
Joint Session: The mediator develops contact with the parties, learns about their interests and factual background, and creates an atmosphere that is conducive to a peaceful resolution.
Individual (Separate) Sessions: When required, a mediator helps the opposing parties come up with possibilities for a peaceful resolution, continues to gather information, and persuades each party to divulge particular, private information.
Agreement: The mediator lowers the settlement to a precise, comprehensive, succinct, and legally enforceable agreement by verifying and elaborating on the conditions of the settlement.
Mediation being a way of Alternate Dispute Resolution, There are various
advantages and disadvantages attached to it.
|Voluntary and Informal:
Parties willingly participate in mediation, making it a voluntary process.
The atmosphere is less formal than a court setting, which can help reduce
|Not Legally Binding:
The agreement reached in mediation is not legally binding until it is
formalized in a separate legal document. This can be a disadvantage if one
party is not willing to abide by the terms.
|Empowerment and Control:
The outcome and the conditions of the agreement are more in the hands of the
People can take an active role in their conflict settlement through
When there is a significant power imbalance between the parties, mediation
may not be as effective because the weaker party may feel pressured to
accept terms that are not in their best interests.
|Preservation of Relationships:
Mediation often focuses on preserving relationships, making it beneficial
for disputes involving ongoing relationships, such as family or business
|Dependence on Cooperation:
All parties must cooperate during the mediation process. The procedure might
not succeed if one side is recalcitrant or unwilling to cooperate in good
Generally, mediation is less expensive than traditional litigation, as it
typically takes less time and requires fewer resources.
|Lack of Legal Expertise:
Mediators are neutral facilitators and do not provide legal advice. In
complex legal matters, parties may still need to consult with attorneys for
The process is confidential, which can encourage open communication and
Mediation does not set legal precedent, which means that the resolution
reached may not be helpful in similar future cases.
Mediation can be adapted to suit the specific needs and preferences of the
|Not Suitable for All Cases:
Mediation may not be suitable for cases involving violence, abuse, or
situations where the power imbalance is too significant.
Resolutions can often be reached more quickly in mediation compared to court
|No Formal Discovery Process:
Unlike litigation, mediation does not have a formal discovery process, which
may limit the amount of information available to the parties.
Parties can explore creative and mutually beneficial solutions that may not
be available in a courtroom setting.
In the case of Vikram Bakshi And Others v. Sonia Khosla (Dead) By Legal
,it was held in para no. 16 by the coram that parties should
have agreed to mediation under Section 89 CPC to find an amicable resolution to
the dispute. The aim of mediation is to find an early resolution, as it benefits
all parties involved and society as a whole. The dispute not only strains the
relationship but also destroys it, affecting the peace of society. Therefore,
the resolution of the dispute should be at the earliest possible opportunity,
ensuring a healthy relationship between individuals.
Conciliation means the action or process of ending a disagreement, often by
discussion between the groups or people involved. It is related to the word
"conciliate" which has been derived from the Latin word "conciliare," which
basically means "to bring together".
The rules of Conciliation in India were codified on the pattern of UNCITRAL
Conciliation Rules. Conciliation is mentioned under Part III of the Arbitration
and Conciliation Act, 1996.The method of conciliation can also be used as a
method to resolve disputes mentioned under Order XXXII A of the Code of Civil
Conciliation is a useful alternative dispute resolution procedure. A neutral
third party known as the "conciliator" helps the disputing parties settle their
differences or disagreement through conciliation, which is essentially an
informal process. According to the Act, the parties may designate one, two, or
three people to serve as conciliators. Each party may designate a conciliator
alone, or they may choose to designate a conciliator jointly.
As an alternative,
they might designate one conciliator for each and decide to include a third
conciliator themselves. In order to designate conciliators, the parties may
enlist the aid of appropriate organisations or individuals. As a substitute for
litigation, the conciliation process has several benefits for the parties: it is
less expensive and time-consuming, it is relatively straightforward and
adaptable, it avoids onerous litigation procedures, it closes the door to
corruption and malpractice, and it gives parties the freedom to end the process
at any point.
Principles of Process of Conciliation:
- Individuality and Neutrality [Section 67(1)]:
The conciliator should act in an unbiased and fair manner to reach an amicable settlement and must maintain an independent and impartial process.
- Impartiality and Justice [Section 67(2)]:
The principles of Justice, Equity and Good Conscience should be followed while considering the parties.
- Confidentiality [Sections 75, 70, proviso]:
The confidentiality should be maintained by the conciliator and should not parcel the information to any third person without the voluntary consent of the parties.
- Disclosure of Information [Section 70]:
The conciliator should disclose the substance of any dispute-related facts from one party to the other, allowing the other party to provide an appropriate explanation.
- Cooperation of Parties with Conciliator [Section 71]:
Parties are required to cooperate with the conciliator in terms of submission of evidence, written materials and attending meetings in good faith.
- Rules of Procedure [Section 66]:
The conciliator, despite not being strictly bound by the Code of Civil Procedure, 1908 or the Indian Evidence Act, 1872, must still uphold the principles of natural justice.
- Place of Meeting [Section 69(2)]:
It should be determined either by an agreement or by the conciliator determining the place by consulting with the parties in dispute.
- Communication between Conciliator and Parties [Section 69(1)]:
The conciliator can engage with parties either orally or in writing, either together or separately, to facilitate effective communication.
Haresh Dayaram Thakur v. State of Maharashtra
Commencement of conciliation proceedings [Section 62]:
By means of a formal invitation to conciliate, one party notifies the other to begin the conciliation process. The nature of the disagreement should be expressly stated in the invitation to conciliation. When the opposing party accepts the invitation in writing, the conciliation process starts. There are no conciliation processes if the opposing party rejects. The party may consider it rejected and notify the other party in writing if they don't hear back from them within 30 days.
Submission of statements to conciliator [Section 65]:
Each party may be asked to provide a brief written statement describing the nature of the disagreement and the points at stake at the conciliator's request. Documents and supporting documentation should be included to the statement, which should contain the facts and justifications. Copies of the statement, supporting documentation, and evidence must be sent by both parties to the other.
Conduct of conciliation proceedings [Section 69(1), 67(3)]:
Section 69(1): The conciliator can converse with the parties verbally or in writing, or he may extend an invitation for them to meet. He may speak or meet with all of the parties at once or individually with each of them.Section 67(3): Taking into consideration the facts of the case, the wishes of the parties, including any request by a party to hear oral statements, and the necessity for a prompt resolution of the dispute, the conciliator may conduct the conciliation proceedings in any way he deems appropriate.
Administrative assistance [Section 68]:
The parties, or the conciliator with the parties' approval, may arrange for administrative support by an appropriate organisation or person to help with the conduct of the conciliation procedures.
, this case emphasized the
importance of distinguishing between arbitration proceedings and conciliation
proceedings. It held that a settlement agreement in a conciliation proceeding is
final and binding on the parties only when it is signed by them. The case also
highlighted the need for conciliators and courts to follow the provisions of the
Arbitration and Conciliation Act, 1996, in order to ensure a proper
understanding of the distinction between these two types of proceedings.
MEDIATION AND CONCILIATION: SAME SIDE OF THE COIN OR DIFFERENT?
According to International Labour Organisation , In the processes of
conciliation and mediation, a third party assists the parties during discussions
or, in instances that negotiations have come to a standstill, in order to assist
them in coming to an agreement.
While in many nations these phrases are
synonymous, in others they are distinguished based on the level of initiative
exercised by the third party. In the United States, conciliation is referred
to as mediation.The Distinctiveness between conciliation and mediation has
also been summarised by the same authority as follows :
"Mediation may be regarded as a half-way house between conciliation and
arbitration. The role of the conciliator is to assist the parties to reach their
own negotiated settlement and he may make suggestions as appropriate. The
mediator proceeds by way of conciliation but in addition is prepared and
expected to make his own formal proposals or recommendations which may be
There are significant similarities between the two terms. Some of them are as follows:
|Section 89 of Code of Civil Procedure,1908
|Part III of The Arbitration and Conciliation Act,1996
|Process Of Solution
|The concerned parties devise a solution.
|Conciliator suggests a solution
|Only a role of guidance
|Seems as an authoritative figure
|Based on trust
|Fixed by law
|Everyone benefits from the agreement.
|Settlement Agreement beneficial and reasonable to all the
|Enforcing Of Agreement
|It is legally binding by the order of court
|It is enforceable as a civil court decree.
|Number Of Third Party
|One or more conciliator in odd number.
- They both are structured informally.
- They both are confidential methods to resolve dispute.
- There is a negotiation between the parties to settle the disputes.
- Both the parties participate voluntarily.
- Both are codified under Section 89 of the Code of Civil Procedure, 1908 as a method to resolve disputes amicably.
- The Principles of Natural Justice are followed in both & mediator or conciliator is expected to be fair, objective, and impartial.
- They are speedier, less expensive, and less burdensome on parties than court trials.
The Mediation Bill of 2023, passed by the Rajya Sabha and Lok Sabha, received
President's assent on September 14, 2023, and was enacted by the Central
Government as "The Mediation Act of 2023" (Act), covering India as a whole.
The words Mediation and Conciliation can be used interchangeably as per the
provisions of The Mediation Act,2023 under Section 61. The Sixth Schedule
mentions about the omission of the word conciliation in The Arbitration and
Section 61: Reference of conciliation in enactments. - (1) Any provision, in any
other enactment for the time being in force, providing for resolution of
disputes through conciliation in accordance with the provisions of this Act,
shall be construed as reference to mediation as provided under the Mediation
(2) Conciliation as provided under this Act and the Code of Civil Procedure,
1908 (5 of 1908), shall be construed as mediation referred to in clause (h) of
section 3 of the Mediation Act, 2023.
In conclusion, it can be stated that mediation and conciliation both derive
their origins from the Code of Civil Procedure, 1908. In foreign countries like
the UK, the two terms are used synonymously. They both follow the path of
"assisted negotiation." Mediation and conciliation are synonymous terms that can
be used interchangeably after the passing of the Mediation Act, 2023. Earlier,
there were some key differences among them, as there was no legal framework for
dealing with mediation and conciliation under the Arbitration and Conciliation
Act, 1996. Hence, they are both on the same side of the coin.
Warren Burger, once said:
"The obligation of the legal profession is � to serve as healers of human
conflict � we should provide mechanisms that can produce an acceptable result in
shortest possible time, with the least possible expense and with a minimum of
stress on the participants. That is what justice is all about."
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- The Mediation Act,2023