Introduction
Mediation and Conciliation are prominent Alternative Dispute Resolution (ADR) mechanisms where a neutral third party facilitates negotiation between disputing parties to reach a mutually acceptable settlement. Both methods emphasize cooperation and preserve relationships by resolving disputes without litigation or arbitration.
Though similar in purpose, mediation and conciliation differ in approach, procedure, and degree of involvement of the neutral third party.
Definitions
- Mediation:
A voluntary and confidential process where a neutral third party, the mediator, facilitates communication and negotiation between parties to help them arrive at a mutually agreeable solution. The mediator does not impose a decision. - Conciliation:
A process where a neutral third party, the conciliator, actively participates by proposing solutions and terms of settlement to assist parties in resolving their dispute. The conciliator may take a more interventionist role than a mediator.
Legal Framework in India
- The Arbitration and Conciliation Act, 1996 (particularly Part III) governs conciliation.
- The Act does not specifically define mediation but its principles overlap with conciliation.
- The Commercial Courts Act, 2015 and various court rules encourage mediation.
- Various mediation centers and mediation councils operate under state laws or court schemes.
- The Supreme Court has promoted mediation as an effective ADR tool (e.g., in cases like Afcons Infrastructure Ltd. v. Cherian Varkey Construction Co. (2010)).
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Key Features
| Aspect | Mediation | Conciliation |
|---|---|---|
| Role of Neutral | Facilitator; helps communication, no proposals | More active; may suggest terms of settlement |
| Voluntariness | Usually voluntary, but can be court-mandated | Often voluntary, sometimes court-referred |
| Control Over Outcome | Fully with parties | Parties have control, but conciliator may guide |
| Binding Nature | Agreement binding if parties sign a settlement | Settlement agreement is binding once executed |
| Formality | Informal, flexible | Semi-formal, may follow procedural steps |
| Confidentiality | Strictly confidential | Confidential, protected by law |
Differences Between Mediation and Conciliation
- Mediator’s role is passive, focusing on communication; conciliator’s role is active, offering proposals.
- Mediation emphasizes mutual understanding; conciliation emphasizes settlement.
- Mediation may be less structured, conciliation may involve a structured process.
- Mediation is often used in family, commercial, and community disputes, conciliation in commercial and industrial disputes.
Process of Mediation & Conciliation
- Initiation:
Parties agree to mediate or conciliate, either voluntarily or through court referral. - Selection of Neutral:
Mediator or conciliator is appointed mutually or by a designated authority. - Preliminary Meeting:
Explanation of the process, establishing ground rules, confidentiality, and voluntary participation. - Joint Sessions:
Parties present their views, identify issues. - Private Caucuses (Mediation):
Mediator meets parties separately to explore interests and options. - Proposal of Settlement (Conciliation):
Conciliator may propose terms of settlement to bridge differences. - Negotiation:
Facilitation of discussions towards a mutually acceptable agreement. - Settlement Agreement:
Once parties agree, the settlement is recorded in writing and signed. - Enforcement:
Settlement agreement may be enforced as a contract or through court order if parties agree.
Legal Provisions Under Arbitration and Conciliation Act, 1996
- Section 61: Confidentiality of conciliation proceedings.
- Section 62: Admissibility of evidence related to conciliation (generally inadmissible).
- Section 63: Enforcement of settlement agreement resulting from conciliation.
- Section 73: Confidentiality and inadmissibility of mediation or conciliation documents in court.
- Section 74: Parties can refer settlement for judicial recording.
Advantages of Mediation & Conciliation
- Cost-effective and time-saving.
- Preserves business and personal relationships.
- Confidential and private.
- Parties retain control over outcome.
- Flexible and informal procedures.
- High compliance rate with settlements.
Limitations
- Requires voluntary cooperation.
- May not be suitable if parties are not willing to negotiate.
- No binding decision unless settlement agreement is executed.
- Mediator/conciliator cannot enforce resolution.
Important Case Laws
- Afcons Infrastructure Ltd. v. Cherian Varkey Construction Co. (2010): Supreme Court endorsed mediation as a viable ADR mechanism.
- Salem Advocate Bar Association v. Union of India (2005): Encouraged mediation to reduce court backlog.
- K. Srinivas Rao v. D.A. Deepa (2013): Emphasized confidentiality and voluntary nature of mediation.
- Datar Switchgear Ltd. v. Tata Finance Ltd. (2001): Settlement agreement reached through conciliation is binding.
Mind Map (Text Format)
Judicially recognized Mediation & Conciliation are dispute resolution methods involving a neutral third party helping parties negotiate a settlement. Mediation is more facilitative, focusing on communication, while conciliation involves proposing settlement terms. Both are voluntary and confidential processes governed by the Arbitration and Conciliation Act, with key sections ensuring confidentiality (61, 62, 73) and enforcement of settlement agreements (63). The process involves initiation, selection of neutral, joint and private sessions (mediation), negotiation, and written settlement. Courts encourage these methods for saving time, reducing litigation, and preserving relationships.
Situation-Based Questions and Answers
Q1: Can a mediator impose a decision on parties?
A1: No. A mediator facilitates negotiation but cannot impose a binding decision.
Q2: What happens if parties reach a settlement in conciliation?
A2: The settlement agreement is written and signed, making it binding and enforceable.
Q3: Are mediation or conciliation proceedings open to the public?
A3: No. They are confidential and not disclosed without parties’ consent.
Frequently Asked Questions (FAQs)
Q1. Is mediation the same as conciliation?
No. While similar, mediation is more facilitative and non-directive, whereas conciliation involves the neutral party proposing solutions.
Q2. Are mediation and conciliation binding?
They become binding only when parties sign a settlement agreement.
Q3. Can the court intervene during mediation or conciliation?
Courts generally do not intervene but may refer parties to these processes or enforce settlement agreements.
Q4. What legal protections exist for confidentiality?
Sections 61, 62, and 73 of the Arbitration and Conciliation Act protect confidentiality of mediation and conciliation proceedings.
Q5. Can a settlement agreement be challenged later?
Usually, no, unless obtained by fraud or coercion.
