Mediation and Conciliation are two most common techniques adopted by parties opting for Alternative Dispute Resolution. Mediation is a process wherein the parties to the dispute appoint a neutral third party who by the way of negotiation and discussions help the parties to the dispute reach to a solution. Mediation is of various types like Evaluative mediation, Online Mediation, Facilitative mediation, Mediation with Arbitration and Transformative mediation. Mediation is different from arbitration in the aspect that the latter is binding on the parties while mediation is not.
Conciliation is a procedure of Alternative Dispute Resolution where the parties for resolving their dispute appoint a third party from mutual consent who then drafts an agreement of resolution after initiating communication, discussion and negotiation between the parties for a solution. The most important element of conciliation which has an appeal for the parties is the importance given by the procedure itself to the confidentiality of the matters and details of the dispute and privacy of the parties.
Both the process of conciliation and mediation sound very similar in their description. Thus the question which arises is that what are the basic difference which make these two technique of ADR distinguishable. Some of the key difference between mediation and conciliation are listed below:
Role of the third party:
In mediation, the mediator is the neutral third party who steps in between the dispute of the parties and enables them to communicate with one another about resolving the dispute. This means that a mediator merely provides a ground, a neutral space where the parties can communicate and themselves reach towards a solution.
On the other hand, in conciliation, the conciliator not only make the party communicate with each other but also help the parties in resolving their dispute by suggesting plausible solutions for the issue and making party agree upon it.
Thus, in mediation the mediator acts as facilitator who initiates dialogue and communication between the parties whereas the role of a conciliator goes beyond that of a facilitator as he/she not only ensure communication between the parties but also suggest possible solution to the problem as an expert.
Laws relating to the process:
Mediation is governed under the Code of Civil Procedure, 1908, and has no specific or individual statute dedicated to its regulation. On the other hand, Conciliation comes under the folds of the Arbitration and Conciliation Act, 1996.
Degree of confidentiality:
One of the basic advantage of adopting ADR as against the court proceeding is the high rate of confidentiality in the matters which ADR grants. Thus both the procedure of Mediation and Conciliation provide a high degree of confidentiality but the difference between them in this matter is that the confidentiality offered by the mediation is solely based on trust but in conciliation it is law that decides to the extent of confidentiality.
In mediation, the third party draws an agreement in the end of the procedure whereas in the process of conciliation, there is a settlement agreement drawn between the parties.
Enforcement of the agreement
The agreement drawn between the parties to the dispute in mediation has similar binding effect as any other contract whereas in the case of Conciliation, the settlement agreement has a force of law similar to that of an Arbitral Award.