Mediation and Conciliation are two methods of conflicts resolutions in which
a third-party is involved. His role varies from one method to another. Unlike
the conciliator who has an active role in the conciliation process (e.g. he can
propose a solution to end the conflict), the mediator assists the parties
throughout the mediation process to help them find a solution to their dispute
by themselves. Mediation and Conciliation refer to the dispute resolution
process in which two or more parties attempt to reach an amicable agreement with
the help of a third party.
Conciliation is an informal process in which the
conciliator (the third party) tries to bring disputants to the agreement. The
parties present their case to a neutral Judge i.e. the conciliator who assists
in settlement, which is normally acceptable to the disputing parties as it is
coming from the neutral source.
The conciliator is not an arbitrator and is not bound by law in order to do,
what he thinks is just and reasonable. This is an acceptable method of resolving
differences and disputes across the developed world.
The settlement agreement signed by the parties shall be
final and binding on the parties. The agreement is to be authenticated by the
conciliator. The settlement of agreement has the same status and effect as if it
were an arbitral tribunal on agreed terms. Thus the settlement can be enforced
as a decree of court.
Procedure for conciliation: The conciliator, when appointed, may request each
party to submit a statement out the general nature of the dispute and the points
at issue. Copy is to be given to the other party if necessary, the parties may
be asked to submit further written statement and other evidence. The conciliator
shall assist the parties in an independent and impartial manner. In their
attempt to reach an amicable settlement. He is to be guided by the principles of
objective, fairness and justice
He is to give consideration to the following matters:
- Rights and obligations of the parties.
- Trade usage.
- Circumstances surrounding the dispute, including previous business
practices between the parties.
He may at any stage, propose a settlement even orally, without stating the
reasons. He may invite the parties or communicate with them jointly or
separately. If the conciliator finds that there exist element of settlement
which may be acceptable to the parties
. Then he shall formulate terms of a
possible settlement and submit the same to the parties for their observation.
Ultimately when a settlement is reached, then the parties may draw and sign a
written settlement agreement.
Mediation is a process by which disputing parties engage the
assistance of a neutral third party to act as a mediator. He is a facilitating
intermediary who has no authority to make any binding decisions, but who uses
various procedures, techniques and skills to help the parties to resolve their
dispute by negotiated agreement without adjudication. Mediation is the most
frequently adopted ADR technique. It is conducted on a confidential basis and
without prejudice to the legal rights and remedies of the parties. The process
may have to pass through several stages like preparation, joint sessions,
private meetings and final result. Practitioners in this field adopt their own
perfect styles. They differ in their basic steps. A lot depends upon the nature
of the dispute. The more complicated a matter, the more private meetings would
be necessary to make the ground for a joint meeting.
Types of Approaches Used By Mediator:
- A mediator may adopt either a FACILITATIVE or EVALUATIVE approach.
Mediator tries to avoid opinions and judgments. They rather facilitate and
encourage parties to upon up their communications and disclose their
interests and priorities. In this process the mediator gets the opportunity
of locating the points of difference and the area of controversy or dispute.
He may then help the parties to bridge the gap between them.
- Another method of mediation is CONSENUS BUILDING. There are certain
matters of general public interest for e.g. road building, canal digging or
the location of the factory. They affect public in general and not just only
one or two be taken care of A public consensus may become necessary.
Basic rules of mediation:
The parties prescribe their own rules and other terms
subject to which their dispute is to be mediated. It may be difficult for the
parties to settle such terms in advance. It may have to be done at the first
meeting with the mediator.
There are ADR organizations and institutions which help the
parties to find out a mediator who is most suitable to the nature of their
dispute The parties can also select a person on the basis of their mutual
Benefit of mediation: Following are the benefits of mediation:
- Informality: No court rules or legal precedents are involved in
mediation. The mediator does not impose a decision upon the parties. As
opposed to adverbial forums, the mediator helps to maintain a businesslike
approach to resolving a dispute. There are no fixed solutions in mediation.
Parties can look to developing creative solutions to resolve matters and the
solutions rest with the parties themselves.
- Privacy and confidentiality: The mediation conference takes place
in a private setting as a conference rooms at any of the arbitration
association. It is not a matter of public record. Confidentiality is
- Time & cost savings: Mediation generally lasts a day complex
matters may require more time due to highly technical issues without the
formalities found in litigation, mediation usually results in substantial
- Control: Parties have control over their participation in
mediation. A party can decide to terminate their participation at any point
in mediation. Mediator help parties to maintain control over the negotiation
that takes place.
Conciliation is an alternative out-of-court dispute resolution instrument.
Like mediation, conciliation is a voluntary, flexible, confidential, and
interest based process. The parties seek to reach an amicable dispute settlement
with the assistance of the conciliator, who acts as a neutral third party. The
main difference between conciliation and mediation proceedings is that, at some
point during the conciliation, the conciliator will be asked by the parties to
provide them with a non-binding settlement proposal.
A mediator, by contrast, will in most cases and as a matter of principle,
refrains from making such a proposal. Conciliation is a voluntary proceeding,
where the parties involved are free to agree and attempt to resolve their
dispute by conciliation. The process is flexible, allowing parties to define the
time, structure and content of the conciliation proceedings. These proceedings
are rarely public. They are interest-based, as the conciliator will when
proposing a settlement, not only take into account the parties' legal positions,
but also their; commercial, financial and / or personal interests.
- Avtar Singh, Law Of Arbitration And Conciliation, (Eastern Book Company,
Haryana, 11th Edn., 2018).
- Justice S B Malik, Commentary On- The Arbitration And Conciliation Act,
(Universal Law Publishing, LexisNexis, 8th Edn., 2017).