Are mediation and conciliation the same? What merits and demerits does mediation have? What are the roles of mediator? What would be the legal effect of mediated agreement? And so forth.

1. INTRODUCTION:

The goal of this entire assignment is to identify where the actual difference lies between mediation and conciliation. To give a one line definition of mediation would be a way of bringing resolution to disputes between two or more parties ^[[1]]. Whereas conciliation concentrates more on saying that it is a process where disputes between parties are settled by services of a conciliator separately meeting the parties for resolution. It is often not clear from one line definitions which bring us to breaking the two terms down also mentioning the merits and demerits of mediation including the role of a mediator and the legal effect of mediated agreements.

2. ARE MEDIATION AND CONCILIATION THE SAME?

When looking at both the terms, they might just look the same, both being a form of alternative dispute resolution (ADR), but when looked into very closely they focus on differences. ‘Mediation’ is a technique of resolving disagreements between two parties by a third party, the mediator. He/she backs the parties to confer their own settlement (to be referred as facilitative mediation) ^[[2]]. Or sometimes they might articulate a vision on what might be a true or rational settlement, known as evaluative mediation. The process mediation is confidential and has a definite timetable and structure.^[[3]] The key distinguishing nature of the process is the company of a mediator. Going for mediation is not always compulsory but once the parties have signed a settlement agreement, they are bound by the deed ^[[4]].

Conciliation on the other hand, though being a similar alternative dispute resolution (ADR) is a process whereby the parties in present future interest disputes come an agreement to meet a conciliator separately and then resolve their differences accordingly by interpreting the key issues, minimizing tensions followed by improved communication, look at probable solutions and thus settling for a negotiation.

The main goal of conciliation is an obvious call to conciliate through concessions and this is where it fifers from mediation. In mediation, the main goal of the mediator would be to pave the discussion path in a way that would look advantageous to both parties taking their feelings into account and reframing presentation. But in conciliation, the parties hardly come face to face and if by chance they do come across each other, there are always a conciliator to manage the situation. In conciliation the parties seldom, if ever, actually face each other across the table in the presence of the conciliator. ^[[5]]

Interestingly, Conciliation is used as a term which serves more like an umbrella-term covering all facilitative and advisory dispute-resolution processes including Mediation. While both mediation and conciliation involve a neutral third-party to enforce powers, there is one significant difference with the fact that conciliators are practiced individuals of the domain in which they resolve differences making suggestions for settlement.^[[6]] Mediation is but solely facilitative where the practitioner has no advisory role whatsoever. As a replacement, a mediator attempts to aid parties build a collective consideration of the key issue or conflict and strive towards building a sensible and permanent resolution.

3. MERITS AND DEMERITS OF MEDIATION

There are several reasons why mediation is chosen over mediums of resolving disputes while some others criticize its effectiveness.

3.1 MERITS

Most people agree that legal proceedings are costly and invasive and this prefer mediation. Conflict resolution processes are thus prone to a greater flexibility. The cases are handled by specialized mediators who have extensive knowledge on specific issues. Adding to that, mediation has a greater control over the confidentiality issues (trade secrets, proprietary information, etc.) of cases is sensitive to exposure. Saving money, time and ending with expedious resolution to the dispute is a big factor and mediation succeeds in keeping these factors into consideration. Both parties are to pay equal shares for the entire process and of course it is remarkably less that the fess that would have to pay if they went for court trials. Plus if by chance agreement is not successful on the first mediation, both parties have the freedom to set a second meeting in a certain timeframe.

These are a few more merits of Mediation:

• Mediation is known for promoting cooperation and communication.
• The decision that is to be made on which the future depends is taken by the parties and not the court.
• Reduction o conflict and positive family relationships is promoted.
• In litigation, the public are usually aware of the trial proceedings in the court including the papers that are filed. But mediation is a confidential process disclosing no finances or personal problems.
• Mediation is cheaper than litigation. ^[[7]] Most mediators charge on an hourly basis and usually the process comes to an end in one to two days. ^[[8]]
• Preparation for mediation is simpler and easier than arbitration or litigation.
• The presence of attorneys is not necessary but if they are asked by any party, they may participate. ^[[9]]  
• Full participation is authorized to both parties in the process of mediation and thus they are able to express their concerns as well as own opinions. ^[[10]]
• Mediation is informal that and if a construction agreement does not distinguish an ADR option, mediation is scheduled by mutual harmony of both parties.
• In mediation, it is allowed to both parties to check the experience of the mediator as well as his/her background. ^[[11]]
• Mediation does not involve a jury and the mediator is a qualified person who is not likely to be persuaded by emotion or shallow arguments, and thus unwarranted risk is reduced. ^[[12]]

3.2 DEMERITS

There are disadvantages of mediation that direct parties in disparity to use other alternatives for resolution such as litigation. When a party is to be blamed entirely using the process of mediation by stalling legal proceedings is never a solution. In this case the other party should not go for any negotiation or compromise. Mediation might not benefit if there is an inequity of supremacy and if this becomes obvious, the mediator should recommend the more susceptible party to seek advice and assistance before continuing.

If one or both parties are withholding information, mediation becomes a problem. Like, if mediation is to resolve financial concerns and one party is concealing their income or assets, the other party may as well be well off with a lawyer who can strongly scrutinize the issue. Mediators are usually good at exploring the parties’ needs, goals, and possible solutions, but mediators do not have the legal resources of a lawyer to excavate hidden information but are brilliant at exploring the parties’ possible solutions, goals and needs. There are more problems to mediation one of which is when one party is very inert and likely to be demolished by the other. In that case the mediated agreement might be asymmetrical in support of the stronger party. However, a good mediator will make sure that the weaker party’s needs are articulated and sheltered. If it looks as though one side will take unacceptable advantage of the other, mediators should refuse to proceed with mediation. ^[[13]]

Involvement of domestic violence means that mediation is inapplicable. One apprehension is that mediation will just grant an opportunity for abuser to harm the victim again. Moreover, victims of physical violence are never able to adequately put across their emotions and also protect their own welfare. But a few professionals have the belief that families with a history of domestic violence having disputes can still be mediated, predominantly if the battered party is not significantly panic-stricken by the other party. Again, if mediation does not succeed, the parties would thus have exhausted time and money on the process and still have to face the expenses of a trial.

Because the mediator is neutral, advice cannot be asked by either of the parties. Thus, the parties must rely on their attorneys to be fully learned of their options. ^[[14]]

4. THE ROLES OF A MEDIATOR

The most important role of the mediator is to intervene from a state of neutrality, having absolutely zero interest in the effect of a disagreement between parties. Ground rules are set before the process begins. ^[[15]] Ground rules are necessary for establishing and identifying the probable behaviors of clients and place the tone for a prolific discussion and opportunity to resolve the conflict. Listening to and helping the parties identify the underlying causes of the conflict and the ways of how they are to resolve it is one of the pivotal roles of a mediator.^[[16]]

The ultimate role of a mediator would be to anything and everything to help parties resolve an issue and thus reach an agreement. A mediator may take on any or all of the subsequent roles:

Convener – Introductory meetings between parties are arranged by the assistance of a mediator.

Educator – It is duty of the mediator to educate the parties of the mediation process and alternatives of conflict resolution, research, court standards, general addressed issues, choice and ethics that may be considered, etc.

Communication Facilitator – The mediator ensures each party is adequately heard in the mediation process.

Translator – The mediator helps by reframing and rearticulating communication procedures when required, so that they are better understood and received.

Questioner and Clarifier – Issues are probed and understandings are confirmed by the mediator ensuring that the mediator and the parties have a full understanding.

Process Advisor – The mediator comes to be trusted to suggest assembly meetings, discussion with outside legal advocate and sessions with substantive connoisseurs.

Angel of Realities – Often it is witnessed that the mediator exercises a caution to act as a devil’s advocate with one or both parties. ^[[17]]

Catalyst – It is the mediator who has to offers for contemplations, thought-provoking perspectives and also interestingly contributing to reference points for selflessness.

Responsible Detail Person – All necessary information is tracked by a mediator, who also writes up the parties’ agreement, and assists the parties to execute their agreement.

5. LEGAL EFFECT OF MEDIATED AGREEMENT

Legal rights or remedies are not forfeited by parties entering into mediation. Each side is always in for enforcing their rights through appropriate court or tribunal procedures if any resolution is not brought about after the process of mediation. But various degrees of obligations and legal rights are observed after any successful settlement. In community mediations for example, parties only ask for a memo or agreement of moral force to be placed. ^[1] In other cases, in order to bring a legally bound situation, a comprehensive deed of agreement is put together.

A mediated conformity may be scheduled with the court in order to make it legally bound. It is often advisable to hire a lawyer to organize the form or get hold of independent legal advice about the proposed terms of the agreement. ^[[18]] Recently mediation has achieved distinction for its ability in reducing loads on court cases, resolution to part disputes, and reduction in overall legal costs. Yet mediation may result in these rights being directly or indirectly harmed as parties enter also intending to preserve their legal rights and remedies,

8. CONCLUSION

Mediation has literally opened the door for those in need of resolving conflicts through non-traditional judicial forums. “Court systems are eager to introduce mandatory mediation as a means to meet their needs to reduce case loads and adversarial litigation, and participants who understand the empowerment of mediation to self-determine their own agreements are equally as eager to embrace mediation as an alternative to costly and potentially harmful litigation.” ^[[19]]

1933 words excluding the question and footnotes

BIBLOGRAPHY

1. Agardy, Peter (2009), ‘Mediation and the insolvency practitioner,’ Insolvency Law Journal, Thomson Reuters, Vol 17. No.3, September, Pages 135-146.
2. Boulle, L. (2005), Mediation: Principles Processes Practice, Australia, LexisNexis Butterworths.
   1. Unknown (2009), Retrieved from http://public.findlaw.com/abaflg/flg-3-4l-5.html
   2. “The roles of a mediator” Retrieved form http://www.mediate.com/divorce/pg31.cfm
      1. Unknown (2011), Retrieved from http://www.mediate.uci.edu/role.shtml
      2. “Ethics and the Role of a Mediator”, (2010), Retrieved form http://adrr.com/adr2/essayp.htm
      3. Spencer and Altobelli (2005), “No Title”, p. 223
      4. Charlton and Dewdney (2004), p. 126
      5. Winslade and Monk, (2000), Jossey-Bass Publishers