Difference between Mediation and Conciliation

 

           Let me say, my real purpose of this post is not to make out a distinction between Mediation and Conciliation.  The title is just to grab your attention!   The real intent is to remove the dust over ‘conciliation conceptualization’, shine it and give it its due place on the altar. 

            The word ‘Conciliation’ appeared on the scene much before the word ‘Mediation’ became part of our vocabulary.  It has been used in statute books in India and abroad for a long-long time now.  For example, one may refer to Industrial Disputes Act, 1947, which gives a complete structure for conducting Conciliation proceedings [See Section 4, 5, 11 and 12 of Industrial Disputes Act, 1947 and also, Rule 9 and 10A of the Industrial Disputes (Central) Rules, 1957] and the Arbitration and Conciliation Act, 1996, also providing therein a structure for conducting conciliation proceedings (see sections 61 to 74).

            The meaning assigned to Mediation, as we understand it today, is of relatively recent origin.  It is now recognized all over the world as a structured way to bring about settlement between disputing parties, where parties are encouraged to identify their underlying interest and it is this interest which drives the parties to arrive at a settlement where a Mediator acts more like a catalyst than as an intervener.

There is, however, no clarity over as to what fundamentally distinguishes ‘Conciliation’ from ‘Mediation’.  More often than not the terms ‘mediation’ and ‘conciliation’ are used interchangeably.  The Mediation and Conciliation Rules as notified by the Hon’ble High Court of Delhi make no distinction between a ‘Mediator’ and a ‘Conciliator’.  In the Rules terms appear side by side like “Mediator/ conciliator”.  Meaning thereby, you could call the same person as Mediator or Conciliator without making any distinction[1]. In the AFCON [2] judgment too, there is no attempt made as such to make a distinction between the two.  In fact, Conciliation is considered to be a synonym of Mediation.   If we look at UNCITRAL Modal Law on International Commercial Conciliation, 2002[3] , we will find, the definition of ‘Conciliation’ takes ‘Mediation’ also in its fold, thereby, not trying to make a separate understandable distinction between the two.  According to it, “ ‘Conciliation’ means a process whether referred to by the expression ‘Conciliation’, Mediation or an expression of similar import, whereby parties request a third person or persons, ( a “Conciliator” ) to assist them in their attempt to reach an amicable settlement of their dispute arising out of or relating to a contractual or legal relationship. The Conciliator does not have the authority to impose upon the parties a solution to the dispute.”   

There is, however, an attempt made to make a conceptual distinction between Conciliation and Mediation by Hon’ble Justice Jagannadha Rao in his article [4]CONCEPTS OF CONCILIATION AND MEDIATION AND THEIR DIFFERENCES”. If one were to rephrase what has been stated in the article alluding to the distinction between the two, it would be like this. The Role of ‘Conciliator’ in bringing about the  settlement is proactive where s/he can make proposal for settlement, ‘formulate’ or ‘reformulate’ them whereas a ‘Mediator’ would not do so, but play a facilitative role encouraging a settlement between the parties by resorting to a relatively a passive process. 

 

The definition given in the draft Mediation and Conciliation Bill, 2010 as proposed in the Law Reforms Report of Ireland on “Alternative Dispute Resolution: Mediation and Conciliation ”, is more or less on the same lines[5]. It reads - “Conciliation” means a facilitative and confidential structured process in which an independent third party called a Conciliator who actively assists the parties in their attempt to reach, on a voluntary basis, a mutually acceptable agreement to resolve their disputes”.  If we look at the definition of “Mediation”, as proposed therein it would read as- “Mediation means facilitative and confidential structured process in which parties attempt by themselves, on a voluntarily basis, to reach an amicably accepted agreement to resolve the dispute with the assistance of an independent third party, called a Mediator”.  The only distinction made out between the two is the kind of role which is played by the third neutral party, in the case of former it being ‘Active’ and in the later it is only ‘facilitative’.  

One also thought at one point of time that actually there is no difference between the two except that ‘Conciliation’ is the end result of a process called ‘Mediation’.

            In the above Law Reforms Report of Ireland, on page no. 18, there is a sub-heading – Rights Based vs. Interest Based Resolutions.  This sub-heading in a way clinches the issue for me to make that conceptual distinction between the ‘Mediation’ and ‘Conciliation’.  The resolution of disputes in Mediation are ‘interest based’ whereas in the case of Conciliation the resolution of disputes are ‘Right Based’.  One may say with some experience working as a mediator , however hard one may try during the course of mediation proceedings, the disputing parties still insist that their rights are given due weight during the negotiations. One can hear them say “Don’t give me anything if it is not due” or “please at least look at my papers”.  In all such situations, the mediator would avoid going into those issues and therefore, this sentiment does not get addressed. Conciliation, on the other hand, makes it possible whereby the Conciliator formulates the settlements on the basis of the legal rights of the parties.  In the process, the end result is not just settlement but also of a reflection of justice having been done to the parties in terms of their legal rights. Let me also add that mediation does not always provide win-win solutions; many agree to accept the settlements during the mediation proceedings compromising on their legal rights with heavy heart because they are given to understand Courts will not be able to deliver the relief based on their rights except at the expense of lot of money and time. It does not give them a feeling justice, what the disputing parties so much look for. Rights based settlement during conciliation proceedings can give far more satisfaction to parties than the settlements during mediations. It is, therefore, imperative that ‘Conciliation’ is given its due place in the scheme of Alternative Dispute Resolution processes.

            There is a necessity of integrated approach when it comes to Mediation and Conciliation.  Mediation may be tried first if does not work conciliation can be tried.  In other words, if the interest based resolutions do not work, right based resolutions can be tried.  For that purpose, the Mediation and Conciliation Rules 2004 framed by Hon’ble High Court of Delhi would not require drastic changes to be made. The existing set up of Mediation Centres in Delhi and may be elsewhere, can be converted   into both Mediation and Conciliation Centres where there can be a separate set of Mediators and Conciliators.  The referral from court can be both for Mediation and Conciliation.  The only difference can be if the Mediation has failed and the parties are still willing to settle their issues on the basis of their legal rights, the Conciliator may call for the record from the court, examine the pleadings, and thereafter provide them with workable settlements, so to say, playing an active role in formulating those settlements, practically, following the same process as has been prescribed in the Mediation and Conciliation Rules, 2004. As stated in AFCONS Case (paragraph 25), if the Conciliation fails, parties can still go back to the Courts to proceed with the trial as it happens in the cases where mediation has failed.

LAXMI KANT GAUR
Director
Delhi Judicial Academy

 

[2] (M/s. Afcons Infra. Ltd. & another Vs. M/s. Cherian Varkey Construction Co. (P) Ltd. C.A. No.6000 of 2010 Supreme Court, Para no. 8…. “…"Mediation" is also a well known term and it refers to a method of non-binding dispute resolution with the assistance of a neutral third party who tries to help the disputing parties to arrive at a negotiated settlement. It is also synonym of the term `conciliation'. (See : Black's Law Dictionary, 7th Edition, Pages 1377 and 996). …..”.

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