This Article has been written by Aakriti Singh, a 3rd Year student of LLB (Hons.) from Amity Law School, Amity University Noida. 

INTRODUCTION 

The Indian Arbitration & Conciliation Act, 1996 provides a legal framework for the various forms of ADR in India. It defines arbitration as a process where two or more parties refer their dispute to one or more independent persons for resolution. Similarly, conciliation involves an independent third party who assists the parties in resolving their dispute through negotiation and compromise. Mediation is also an ADR method that is used to facilitate communication between disputing parties so that they can reach an agreement with the help of a neutral third party.

These ADR methods provide an effective way to resolve disputes outside of court proceedings, which can be time consuming and costly for all involved parties. They offer a cost-effective solution for resolving disputes quickly and efficiently. 

Mediation and conciliation are two methods of dispute resolution that are often confused with each other. While both involve the use of a neutral third-party to facilitate communication between parties, there are some key differences. Mediation is a process in which an impartial mediator assists the parties in negotiating an agreement without making any decisions for them. Conciliation, on the other hand, is a more directive process where the conciliator may make suggestions and even impose a solution. In addition, while mediation is typically voluntary, conciliation may be court-ordered or imposed by statute.

CONCILIATION: 

Conciliation is a process of settling disputes without going through litigation. It is an informal procedure wherein a third party, the conciliator, attempts to bring the conflicting parties to an agreement. The conciliator works to resolve the conflicting issues by decreasing the tension, improving communication, interpreting issues, providing technical support, exploring potential solutions, and presenting a negotiated settlement to the parties. The conciliator has the freedom to employ their own methods to solve the dispute, and the steps taken are not necessarily strict or legal. There is no requirement for an agreement such as an arbitration agreement. Both parties must accept the settlement. 

Part III of the Arbitration and Conciliation Act, 1996 is associated with conciliation. It is a voluntary procedure in which parties in dispute consent to settle their dispute through conciliation. It is a flexible process which enables the parties to determine the time and place for conciliation, structure, content, and terms of negotiations. In conciliation, the conciliators are trained and qualified neutral persons who assist the conflicting parties to recognize the problems in dispute and their individual interests in order to arrive at an agreement that’s agreeable to both. The conciliation process involves conversations between the parties with the participation of the conciliator. It covers a wide range of disputes, such as industrial disputes, family disputes, marriage disputes, and so on. This allows the parties to have control over the result of their dispute, and the outcome is more likely to be satisfactory.

Conciliator is a third party who is brought in to resolve the dispute between two or more parties. Depending on the parties’ request, there can be more than one conciliator to resolve the dispute and they are to act together. Section 64 of the procedure outlines that the third conciliator should act as the Presiding Conciliator when there is more than one involved.

There are two main types of conciliation that the parties can opt for to resolve the dispute. Voluntary Conciliation is when the parties voluntarily join the process of conciliation in order to settle the dispute. Compulsory Conciliation is when the parties are unwilling to participate in the process and thus, the conciliation is made compulsory. This is often used in labour cases.

The objective of conciliation proceedings is to achieve a speedy and cost-effective settlement, which is mutually agreed upon by the parties. Section 62 of the procedure states that the conciliation process will start when one party sends a Written Invitation to Conciliate upon the matter to the other party, and it only commences upon the other party’s acceptance of the invitation in writing. If the other party rejects the invitation or does not respond within Thirty days, the process is considered nullified.

The conciliation procedure is a private process and involves Confidential documents, evidence, or any other information used during the process. It is an Informal process with Simple procedures and takes the needs of the parties into consideration, allowing for quick settlement of cases. The selection of the conciliators is made by the parties and depends on their availability, experience in particular fields, previous track records, and knowledge of the subject area.

In comparison to litigation, conciliation is also cost-effective and is widely accepted for resolving disputes. However, it does have some drawbacks. The conciliator is not a legally qualified person and their decision is not binding. Additionally, due to the Informal and Simple nature of the process, there is a higher chance of delivering injustice. Additionally, the process of sending and receiving information can lead to miscommunication of information, which can be misinterpreted easily.

MEDIATION:

Mediation is an ancient method of dispute resolution, with forms of mediation among businessmen becoming popular during Pre-British rule in India. The Mahajans, respected and wise businessmen, would resolve disputes between merchants through a combination of mediation and arbitration, now known as med-arb in the Western world. While gaining widespread acceptance in the business world, arbitration did not have any legal sanction. 

The East India Company gained control over India and, by 1775, had established British-style courts based on the laws of that period. This led to a dispute between British values, which gave clear decisions on cases, and Indian values ​​which promoted parties to work with their differences and come to a settlement. British courts eventually gained the trust of the people and continued to dispense justice even after India gained its independence in 1947. Commerce, trade and industry began to expand rapidly in the 21st century, and the British judicial system was able to quickly provide justice while maintaining its integrity.

Mediation is a type of alternative dispute resolution that is voluntary and informal. It is completely under the control of the parties involved, who can either appoint their own mediator or have one assigned by the court if the dispute is in litigation. A mediator is a trained professional who uses special kinds of conversation and communication to facilitate a negotiation between the parties. 

The mediator does not decide what is right or wrong, fair or unfair; instead, they guide the process of the parties coming to a mutual agreement. Mediators may hold joint meetings or meet with each party separately and suggest solutions, offer options to compromise, or provide advice and guidance. The goal is to help the parties reach an outcome without forcing an opinion or solution onto them. In mediation, the responsibility of the resolution lies with the parties, not the mediator. The parties’ goal is to come up with a solution that is acceptable to both of them, not to convince the mediator of their side of the dispute.

Mediation is an informal method of dispute resolution, but it can still yield powerful results. It is beneficial because it allows the parties to make their own decisions, which can lead to compromises that are more likely to hold up over time. Additionally, mediation can save time and money, as well as providing a platform for reconciliation and a sense of closure.

There are two types of mediation:

Court Referred Mediation

The court has the authority to send a pending case to a mediator for mediation if they deem it possible for the case to be settled. This is outlined in Section 89 of the Civil Procedure Code of 1908. This kind of mediation is commonly used in cases such as divorce or disputes under the Negotiable Instrument Act of 1881.

Private Mediation

In this type of mediation, a professional, trained individual works as the mediator. They can be approached by the general public, government officials, corporate personnel, or court personnel looking to settle a dispute through mediation.

CONCLUSION

With the above discussion, we can arrive at the conclusion that despite both Mediation and Conciliation seem similar to each other, yet they are very different from one another. Starting from the meaning, where Conciliation is an alternate dispute resolution technique which involves appointing a knowledgeable expert to settle the disagreement between parties by persuading them to come to an accord, Mediation is a process of dealing with disputes that entails a neutral third party to aid the parties to reach a joint resolution. Furthermore, the Civil Procedure Code, 1908 governs Conciliation, while the Arbitration and Conciliation Act, 1996 controls Mediation. Additionally, where in process of conciliation one can have one or more conciliator, contrastingly, only one mediator is required for mediation. When it comes to confidential , the confidentiality of conciliation is predetermined by law, while the confidentiality of mediation relies on faith and it is advisable that the participants sign a Confidentiality Clause as an additional precaution in the process of mediation. The conciliator plays a more involved role in conciliation, while the mediator must be impartial and unprejudiced in regards to the dispute in mediation. For conciliation, the conciliator also has the role of assessing and intervening to resolve the dispute, while the mediator in mediation does not issue any verdict.

The discussion above actively demonstrates that both mediation and conciliation have divergences and parties opting for either must be mindful of these divergences to reach satisfactory results and have a smoother resolution of disputes. 

REFERENCES

Alternative dispute resoluton in India – legalaffairs.gov.in, https://legalaffairs.gov.in/sites/default/files/arbitration-and-mediation_0.pdf(last visited Feb 24, 2023) 

Arbitration, conciliation and mediation in a Nutshell iPleaders, https://blog.ipleaders.in/arbitration-conciliation-and-mediation/ (last visited Feb 25, 2023) 

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