India's history of out-of-court settlements dates to the period of
Arthshastra, however, the modern alternate dispute resolution that India has is
influenced by the West. Section 89 of the code of civil procedure talks about
out-of-court methods for the settlement of disputes. It mentions Mediation and
Conciliation as part of those methods in separate clauses i.e. (b) and (d).
Hence, implies that the two concepts are different from one another.
But despite this distinction made in the legislation, there is no significant
concrete difference that separates the two. This article aims to answer the
question as to why Mediation and Conciliation despite being distinct are
indistinguishable from one another.
What is Mediation?
Mediation is nowhere defined in Indian legal statutory books; however, we can
seek to understand the term through the comments of the judiciary and Delhi's
Mediation and Conciliation Centre which are Mediation is a process in which two
parties who are in a dispute communicate with the help of a third party (i.e.,
the mediator) to settle their dispute. Mediation is an assisted negotiation. It
is a voluntary and confidential activity.
It helps the parties reach an amicable solution. The cases that are of civil
nature are covered within the ambit of mediation. For example, cases related to
enforcement of specific performance, matrimonial cases etc. The role of the
mediator in a mediation is minimal. He merely facilitates the dialogue and can,
at times, make the parties aware of legal information.
How is Conciliation different?
Conciliation and Mediation overlap due to many similarities. However, there are
some subtle differences between the two. These are as follows:
- In Conciliation, the role of the third party (i.e., the conciliator) is
more intervening. The conciliator makes suggestions to the parties and has a
relatively significant influence on the parties as compared to a mediator. A
conciliator enjoys more freedom than a mediator.
- In Conciliation, the third party that is assisting the negotiation is an
expert while in Mediation that is not necessarily the case.
- Provisions related to Conciliation are codified in Part three (Section
61-81) of the Arbitration and Conciliation Act of 1996 while Mediation
derives its validity from the Code of Civil procedure 1908.
- Confidentiality is ensured by law in a Conciliation process while in
Mediation it is dependent on mere trust.
- A successful Conciliation leads to a settlement agreement which is
enforceable by the civil court while in Mediation a settlement is
enforceable by law.
- Powers of the conciliator are broader than that of the mediator. For
example, A conciliator can formulate, and reformulate the terms of the
settlement while a mediator does not have the power to do so.
In the words of Justice R.C Lahoti: "Mediation may result in resolution of
the dispute; conciliation emphasizes more on the dissolution of dispute" .
SimilaritiesThere are significant similarities between the two terms. Some of them are as
- In both the dispute settlement mechanisms the third party i.e., the
mediator or conciliator is expected to be fair, objective, and impartial.
- Both, Mediation and Conciliation are participated in voluntarily.
- They are informally structured.
- There is an assurance of confidentiality.
- There is a negotiation between the parties to settle the dispute.
- Both are codified in section 89 of the code of civil procedure as
methods for settlement of disputes out of the court.
- They are both faster, cheaper, and less of a burden on parties as
compared to court cases.
The above paras explain the usage of the term "Conciliation" and "Mediation" in
India, the United Kingdom and under the UNCITRAL (United Nations Commission on
International Trade Law) model on which Arbitration and Conciliation Act 1996 is
based. But in the United States, the term "Mediation" is used to refer to the
type of assisted negotiation where the third party (i.e., the mediator) plays a
more proactive role and the term "Conciliation" is not used much. In the UK,
although the usage is similar to India, in certain contexts it implies a minimal
role on the part of the conciliator.
The International Labour Organization has tried defining Conciliation as
"The practice by which the services of a neutral third party are used in a
dispute as a means of helping the disputing parties to reduce the extent of
their differences and to arrive at an amicable settlement or agreed solution. It
is a process of orderly or rational discussion under the guidance of the
Mediation and Conciliation both derive their origin from the Code of Civil
Procedure, 1908. Although there are subtle distinctions between the two terms,
they are used synonymously not only in India but also in some other nations such
as the United Kingdom. The major difference between the two is that the mediator
plays more of a passive role while a Conciliator is more proactive in the
process of negotiation.
He can also formulate the terms of the settlement and suggest parties to the
settlement. But despite the differences in definitions Mediation and
Conciliation are used interchangeably since there are major similarities between
their mechanism and structure. Both the terms, Mediation or/and Conciliation are
used to refer to the idea of "Assisted negotiation", hence, the little
distinction becomes invisible when the crux of both the terms is the same.
- Justice R.C Lahoti, Key note address delivered that at two day
conference of ADR, Mediation and Case Management Organized by the Law
Commission of India, delivered on 03.05.2003
- Justice B.N Kirpal, "India and Alternative Dispute Resolution"
- The Code of Civil Procedure 1908
- The Arbitration and Conciliation Act, 1996
- Law Relating to Arbitration and Conciliation by Dr. PC Wadhwa
- Concepts of Conciliation and Mediation and their differences by Justice
M. Jagannadha Rao
- VIA- Mediation and Arbitration Centre