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Why Mediation And Conciliation is used synonymously in India

India's history of out-of-court settlements dates to the period of Arthshastra, however, the modern alternate dispute resolution that India has is influenced by the West.[1] Section 89 of the code of civil procedure talks about out-of-court methods for the settlement of disputes. It mentions Mediation and Conciliation as part of those methods in separate clauses i.e. (b) and (d). Hence, implies that the two concepts are different from one another.

But despite this distinction made in the legislation, there is no significant concrete difference that separates the two. This article aims to answer the question as to why Mediation and Conciliation despite being distinct are indistinguishable from one another.

What is Mediation?

Mediation is nowhere defined in Indian legal statutory books; however, we can seek to understand the term through the comments of the judiciary and Delhi's Mediation and Conciliation Centre which are Mediation is a process in which two parties who are in a dispute communicate with the help of a third party (i.e., the mediator) to settle their dispute. Mediation is an assisted negotiation. It is a voluntary and confidential activity.

It helps the parties reach an amicable solution. The cases that are of civil nature are covered within the ambit of mediation. For example, cases related to enforcement of specific performance, matrimonial cases etc. The role of the mediator in a mediation is minimal. He merely facilitates the dialogue and can, at times, make the parties aware of legal information.

How is Conciliation different?

Conciliation and Mediation overlap due to many similarities. However, there are some subtle differences between the two. These are as follows:
  • In Conciliation, the role of the third party (i.e., the conciliator) is more intervening. The conciliator makes suggestions to the parties and has a relatively significant influence on the parties as compared to a mediator. A conciliator enjoys more freedom than a mediator.
  • In Conciliation, the third party that is assisting the negotiation is an expert while in Mediation that is not necessarily the case.
  • Provisions related to Conciliation are codified in Part three (Section 61-81) of the Arbitration and Conciliation Act of 1996 while Mediation derives its validity from the Code of Civil procedure 1908[2].
  • Confidentiality is ensured by law in a Conciliation process while in Mediation it is dependent on mere trust.
  • A successful Conciliation leads to a settlement agreement which is enforceable by the civil court while in Mediation a settlement is enforceable by law.
  • Powers of the conciliator are broader than that of the mediator. For example, A conciliator can formulate, and reformulate the terms of the settlement while a mediator does not have the power to do so.

In the words of Justice R.C Lahoti: "Mediation may result in resolution of the dispute; conciliation emphasizes more on the dissolution of dispute" [3].

Similarities

There are significant similarities between the two terms. Some of them are as follows:
  • In both the dispute settlement mechanisms the third party i.e., the mediator or conciliator is expected to be fair, objective, and impartial.
  • Both, Mediation and Conciliation are participated in voluntarily.
  • They are informally structured.
  • There is an assurance of confidentiality.
  • There is a negotiation between the parties to settle the dispute.
  • Both are codified in section 89 of the code of civil procedure as methods for settlement of disputes out of the court.
  • They are both faster, cheaper, and less of a burden on parties as compared to court cases.

International Usage

The above paras explain the usage of the term "Conciliation" and "Mediation" in India, the United Kingdom and under the UNCITRAL (United Nations Commission on International Trade Law) model on which Arbitration and Conciliation Act 1996 is based.[4] But in the United States, the term "Mediation" is used to refer to the type of assisted negotiation where the third party (i.e., the mediator) plays a more proactive role and the term "Conciliation" is not used much. In the UK, although the usage is similar to India, in certain contexts it implies a minimal role on the part of the conciliator.

The International Labour Organization has tried defining Conciliation as follows:

"The practice by which the services of a neutral third party are used in a dispute as a means of helping the disputing parties to reduce the extent of their differences and to arrive at an amicable settlement or agreed solution. It is a process of orderly or rational discussion under the guidance of the conciliator."[5]

Conclusion
Mediation and Conciliation both derive their origin from the Code of Civil Procedure, 1908. Although there are subtle distinctions between the two terms, they are used synonymously not only in India but also in some other nations such as the United Kingdom. The major difference between the two is that the mediator plays more of a passive role while a Conciliator is more proactive in the process of negotiation.

He can also formulate the terms of the settlement and suggest parties to the settlement. But despite the differences in definitions Mediation and Conciliation are used interchangeably since there are major similarities between their mechanism and structure. Both the terms, Mediation or/and Conciliation are used to refer to the idea of "Assisted negotiation", hence, the little distinction becomes invisible when the crux of both the terms is the same.

Bibliography:
  • Justice R.C Lahoti, Key note address delivered that at two day conference of ADR, Mediation and Case Management Organized by the Law Commission of India, delivered on 03.05.2003
  • Justice B.N Kirpal, "India and Alternative Dispute Resolution"
  • The Code of Civil Procedure 1908
  • The Arbitration and Conciliation Act, 1996
  • Law Relating to Arbitration and Conciliation by Dr. PC Wadhwa
  • Concepts of Conciliation and Mediation and their differences by Justice M. Jagannadha Rao
  • VIA- Mediation and Arbitration Centre
End-Notes:
  1. https://www.advocatekhoj.com/library/bareacts/codeofcivilprocedure/index.php?
  2. https://lawcommissionofindia.nic.in/adr_conf/Justice_Lahoti_Address.pdf
  3. https://lawcommissionofindia.nic.in/adr_conf/concepts%20med%20rao%201.pdf
  4. https://lawcommissionofindia.nic.in/adr_conf/concepts%20med%20rao%201.pdf

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