Mediation & Conciliation

Introduction to Mediation and Conciliation

Mediation and conciliation are two forms of alternative dispute resolution (ADR) that have gained significant recognition globally, including in India. These processes are designed to help resolve disputes between parties in a less formal and less costly manner compared to traditional litigation.

Conciliation

A conciliator is an independent third-party neutral who facilitates communication between the disputing parties to help them reach a mutually acceptable agreement. The conciliator's role is to assist the parties in identifying the issues, generating options, and finding a resolution that is acceptable to all. Conciliation is a flexible process that can be tailored to the specific needs of the parties involved.

Mediation

Mediation is another form of ADR that involves a neutral third-party mediator who helps the parties to negotiate a resolution. The mediator's role is to facilitate communication, identify common goals, and help the parties to find a mutually beneficial solution. Mediation is a voluntary process, and the parties must agree to participate and abide by the terms of the mediation.

Difference between Conciliation and Mediation

While the terms "mediation" and "conciliation" are often used interchangeably, there are distinct differences between the two processes. In India, the Code of Civil Procedure (CPC) recognizes these differences and provides guidance on when to use each process.

• Level of Intervention: Conciliation typically involves a more active role for the conciliator, who may provide suggestions and proposals to help the parties reach a settlement. Mediation, on the other hand, involves a more passive role for the mediator, who facilitates communication and helps the parties to find their own solution.
• Formality: Conciliation is often a more formal process than mediation, with a greater emphasis on procedure and protocol. Mediation, by contrast, is often more informal and flexible.
• Binding Nature: In India, conciliation proceedings are governed by the Conciliation Rules, which provide that a conciliator's decision is not binding on the parties. Mediation, on the other hand, can result in a binding agreement if the parties agree to be bound by the terms of the mediation.

Code of Civil Procedure (CPC)

The CPC provides guidance on when to use conciliation, mediation, or other forms of ADR. According to the CPC, where it appears to the court that there exist elements of a settlement that may be acceptable to the parties, the court may:

1. Formulate possible terms of settlement: The court may suggest possible terms of settlement to the parties, which can help to facilitate a resolution.
2. Refer the dispute to arbitration, conciliation, or judicial settlement: The court may refer the dispute to arbitration, conciliation, or judicial settlement, depending on the specific circumstances of the case.

Arbitration Proceedings

Even during the course of arbitral proceedings, the arbitral tribunal is empowered to encourage settlement and may use mediation, conciliation, or other procedures to encourage settlement. This approach recognizes that ADR can be an effective way to resolve disputes, even in cases where arbitration is ongoing.

In conclusion, mediation and conciliation are two distinct forms of ADR that can be used to resolve disputes in a less formal and less costly manner. While there are differences between the two processes, both can be effective in helping parties to reach a mutually acceptable agreement. The CPC provides guidance on when to use each process, and the arbitral tribunal may also use ADR to encourage settlement during arbitration proceedings.