Introduction
The history of out-of-court settlements in India extends back to the Arthshastra period; nevertheless, India's present alternative dispute resolution is influenced by the West.
Section
89 of the code of civil procedure discusses procedures for the settlement of
disputes outside of court. It specifies Mediation and Conciliation as
components of these procedures in two separate sentences, namely (b), (c) and
(d). Consequently, indicates that the two notions are distinct.
Nevertheless,
notwithstanding this distinction created in the law, there is no material
differentiation between the two. This essay seeks to solve the topic of why
Mediation and Conciliation are indistinguishable while being independent
processes.
What Exactly Is Mediation?
Mediation
is not defined anywhere in Indian legal statutes; however, the opinions of the
judiciary and Delhi's Mediation and Conciliation Centre might help us grasp the
concept. Mediation is a process in which disputing parties communicate with a
neutral third party (the mediator) to resolve their issue. Mediation is a
negotiation with assistance. It is a voluntary and private endeavor.
It
aids the parties in arriving at an agreeable resolution. Cases of a civil
nature are under the mediation's purview. For instance, enforcement of specific
performance cases, matrimonial cases, etc. The mediator's role in mediation is
modest. He only facilitates the conversation and can occasionally provide the
parties with legal information.
What Makes Conciliation Unique?
Conciliation
and Mediation are intertwined due to their many similarities. Nevertheless,
there are small distinctions between the two. These are listed below:
The
function of the third party (i.e., the conciliator) is more intervening in
Conciliation. Comparatively to a mediator, the conciliator has a greater effect
on the parties and provides proposals to them. A conciliator has greater
independence than a mediator.
In
Conciliation, the third party assisting in the negotiation is an expert,
whereas, in Mediation, this is not always the case.
Conciliation-related
provisions are codified in Part three (Section 61-81) of the Arbitration and
Conciliation Act of 1996, whilst Mediation's legal standing is derived from the
Code of Civil Procedure of 1908.
In
a Conciliation procedure, confidentiality is mandated by law, whereas in
Mediation, it is contingent on trust alone. A successful Conciliation results
in a settlement agreement that is enforceable by a civil court, whereas a
settlement is enforceable by law in Mediation.
The
conciliator's authority is greater than that of the mediator. For instance, a
conciliator can design and reformulate the conditions of the settlement,
whereas a mediator does not. According to Justice R.C. Lahoti, "mediation
may result in the resolution of the disagreement, whereas conciliation focuses
more on the resolution of the conflict".
Similarities:
Significant
parallels exist between the terms. Among them are the following:
- The third party, i.e., the mediator or conciliator, is required to be fair, objective, and impartial in both dispute resolution procedures.
- Both Mediation and Conciliation are voluntary processes.
- They are organized informally.
- There is a confidentiality guarantee.
- The parties are engaged in negotiations to settle the matter.
- Both are codified in section 89 of the code of civil procedure as out-of-court conflict resolution procedures.
- They are faster, cheaper, and less burdensome on the parties than judicial proceedings.
International
Application:
The
preceding paragraphs explain how the terms "Conciliation" and
"Mediation" are used in India, the United Kingdom, and under the
UNCITRAL (United Nations Commission on International Trade Law) model, upon
which the Arbitration and Conciliation Act of 1996 is founded.
In
the United States, however, the term "Mediation" is used to refer to
a sort of assisted negotiation in which the third party (i.e., the mediator)
takes a more proactive role, and "Conciliation" is rarely used.
Although the usage in the United Kingdom is comparable to that in India, in
particular contexts it means that the role of the conciliator is modest.
The International Labour Organization Has Attempted the Following Definition of Conciliation:
"Mediation
is the process of utilizing the services of a neutral third party to assist
disputing parties in reducing their differences and reaching an acceptable
settlement or agreed-upon solution. Under the supervision of the conciliator,
it consists of an organized or sensible conversation."
Conclusion:
Mediation
and Conciliation have their origins in the 1908 Code of Civil Procedure.
Although there are subtle differences between the two phrases, they are used
interchangeably in India and other countries, including the United Kingdom. The
primary distinction between the two is that the mediator plays a more passive
role in the negotiation process, whilst the Conciliator is more assertive.
He
can also draught the conditions of the settlement and suggest the parties
involved. Despite the differences in their definitions, Mediation and
Conciliation are employed interchangeably because their mechanisms and
structures are so similar. Because both Mediation and Conciliation are used
interchangeably to refer to "Assisted Negotiation," the distinction
between the two becomes null and void.
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