Difference between Mediation and Conciliation

Mediation and Conciliation are the two most important mechanisms of Alternate Dispute Resolution (ADR). Although these two are distinct concepts, they are mostly seen in a similar light. Moreover, they were accepted by the legislation much later than the arbitration. Therefore, Mediation and Conciliation remain to be seen as clubbed together, on the other side.

What is Mediation?

Mediation is a mechanism of the Alternative Dispute Resolution (ADR) process in which the disputing parties select one or more neutral persons, who have no personal interest in the case and who can bring the parties together to discuss the case and deliberate on the dispute and reach an agreement. In the case of Mediation, the neutral person acts as a Mediator, and they act as a medium of facilitating the mediation process between the parties.

The intention behind Mediation is to settle the disputes amicably by cordial negotiations between the parties themselves. Mediators here don’t have to persuade the parties to settle or resolve their disputes. The decision-making power to resolve the disputes entirely lies with the parties. Upon successful conclusion, the mediator, based on the suggestion of the parties draws an Agreement or a Mediated Agreement, and this agreement becomes final and binding on the parties.

What is Conciliation?

Conciliation is a private mode for the settlement of disputes, where the parties appoint a neutral third party called the Conciliator. The conciliator actively participates in the process and assists the parties in reaching a middle ground. It is a way to resolve disputes by deriving a compromise between the parties. Here, the parties have the freedom to appoint more than one conciliator.

Conciliation is one step ahead of Mediation. Here, the conciliator is duty-bound to act in a just and impartial manner and give both parties a fair hearing. If at any point of time, the conciliator thinks there is a possibility for the settlement of disputes, the conciliator can propose a settlement to the parties. Based on the suggestion from the parties, the conciliator prepares a settlement agreement that becomes binding on the parties and enforceable in the court of law as a Settlement Agreement.

Difference between Mediation and Conciliation

Basis	Mediation	Conciliation
Meaning	Mediation is a process where the disputing parties appoint a third neutral party, called a Mediator to help them negotiate and settle the disputes amicably.	It is a process where the disputing parties appoint a third neutral party, called the Conciliator to help them negotiate and provide a settlement solution.
Objective	The objective behind Mediation is to enable the parties to talk about their differences and come to a middle ground.	The objective behind Conciliation is to attempt to settle the disputes amicably through the suggestion of a neutral third party; i.e., Conciliator.
Role of Third Party	The Mediator brings the disputed parties together and it is on the parties to talk and negotiate by themselves.	The Conciliator has to bring the parties together and make an active effort to settle the disputes between the parties.
Nature of Procedure	Mediation is a less formal mode of dispute resolution.	Conciliation is more formal than Mediation, but less formal in comparison with Arbitration.
Governing Legislation	Mediation is governed under the Mediation Act, 2023, which is a legislation that was passed recently.	Conciliation is governed under the Arbitration and Conciliation Act, 1996.

Conclusion

Both Mediation and Conciliation form a part of Alternative Dispute Resolution (ADR) mechanisms and are adopted by parties as a convenient, flexible, voluntary, and private form of dispute resolution. It is also considered that both these procedures are slightly informal as compared to the process of Arbitration, which is more formal in nature. However, between Mediation and Conciliation, the main aspect of difference is that in Mediation, the mediator is required to act as a facilitator and not provide individual inputs; whereas, in Conciliation, the conciliator provides his input and makes all attempts and persuade both the disputed parties to come to a settlement. Thus, Mediation is different from Conciliation in respect of the powers and functions of the Mediator and the Conciliator.

Frequently Asked Questions (FAQs)

1. Can Mediation and Conciliation both be used as a mechanism for resolving disputes?

Answer:

In general, out of the two mechanisms, only one is taken to be a preferred mode of dispute resolution because once the procedure is done and completed, it becomes binding on the parties and legally enforceable.

2. Do cases of Mediation and Conciliation get reported?

Answer:

Usually, these two proceedings are conducted inside closed doors of a conference room or mediation halls. Since they seldom result in a settlement, these cases go unreported on public platforms. However, if after coming up with a settlement the parties refer more disputes to arbitration or the courts, then it is likely to get reported.

3. Can a Mediator/Conciliator be a known person to the parties?

Answer:

A Mediator/Conciliator can be a known person to the parties; however, he should not have any direct/indirect interest in any of the parties. Usually, an unknown person is chosen so that impartiality and unbiased conduct are assured from his side.

4. Who can be the third neutral party in Mediation and Conciliation?

Answer:

In both proceedings, a third neutral party can be any person who has no direct or indirect interest in the dispute or disputed parties. The main object should be being unbiased while performing their role.

5. Can the parties refer the disputes to Mediation after signing a contract?

Answer:

Yes, the parties can refer the dispute to Mediation at any point of time through a mutual agreement. If the contract has already been signed, the parties can include mediation in the contract by way of an amendment. Even at the stage of trial of dispute, the parties can request the court to refer the dispute to mediation.