The assignment scrutinizes the most two important dispute resolution process of Alternative Dispute Resolution, mediation and conciliation which are almost same but there is a significant difference between them. Mediation is a facilitative process in which disputing parties engage the assistant of an impartial third party, the mediator, who helps them to try to arrive at an agreed resolution of their dispute and the conciliation is another process in which parties to a dispute, with the assistance of a neutral third party, identify the disputed issues, develop options, consider alternatives and endeavor to reach a resolution by agreement. One of the greatest benefits of mediation is that it allows people to resolve the charge in a friendly way and in ways that meet their own unique needs. Mediation is fair, efficient and can help the parties avoid a lengthy investigation and litigation. On the other hand, conciliation has been found to be most satisfactory in resolving conflicts and in most cases it has alleviated the need for any formal grievance process. Conciliation is particularly useful where there is an ongoing working relationship between the parties. In all parts of the world, including North and South America, Asia, and India, large and small commercial entities are recognizing the business benefits of mediation. According to international and European trends, mediation is emerging as an effective and often preferred method for private commercial companies and government agencies to fulfill their organizational objectives by privately and promptly resolving disputes in a manner that saves time, money, and business relationships. Though conciliation and mediation both maintain an existing business relationship and to revive a lost balance of power between two parties, these concepts are sometimes used as synonyms, but they do indeed vary substantially in their procedures.
TABLE OF CONTENT
DIFFERENCES BETWEEN A MEDIATOR & A CONCILIATOR 5
DIFFERENCES BETWEEN MEDIATION & CONCILIATION 6
BENEFITS OF MEDIATION & CONCILIATION 6
THE TERMS MEDIATION & CONCILIATION ARE OFTEN USED INTERCHANGEABLY 7
ADR: Alternative Dispute Resolution
EEP: Equal Employment opportunities
ILO: International Labor Organization
UNCITRAL: United Nations Commission on International trade Law
ACAS: Advisory, Conciliation and Arbitration Services
FICCI: Federation of Indian Chambers of Commerce and Industry
FACT: FICCI Arbitration and Conciliation Tribunal
Historically, methods used to settle disputes have ranged from negotiation, to courtroom litigation, and even to physical combat. The legal needs of countries, multinational companies, and ordinary people have changed over the last decade. When faced with a dispute, business people are learning that, whenever possible, it is more advantageous to reach practical and private agreements than to fight for years and spend huge amounts of money in courtroom battles. Due to the vast amounts of time and money involved in the trial process, people around the world have increasingly turned to legal alternatives that are more prompt, private and economical than the courtroom. Alternative Dispute Resolution (ADR) refers to the wide spectrum of legal avenues that use means other than trial to settle disputes. The main ADR alternatives to civil litigation are negotiation, arbitration, conciliation and mediation. Disputing parties use these ADR methods because they are expeditious, private, and generally much less expensive than a trial. While each of these ADR processes may be effective in various circumstances, mediation in the United States has proven to offer superior advantages for the resolution of disputes that resist resolution.
Mediation is an informal dispute resolution process aimed at enabling the parties to a dispute to discuss their differences in total privacy with the assistance of a neutral third party (mediator) whose task it is first to help each party to understand the other party’s view of the matters in dispute and then to help both parties to make a dispassionate, objective appraisal of the total situation. As part of the process the mediator talks confidentially with each party. The object is to help the parties to negotiate a settlement. The discussions are wholly without prejudice. Nothing that is said by either party can be used or referred to in any later proceedings (eg. in a Court case).
“Mediation is a facilitative process in which disputing parties engage the assistant of an impartial third party, the mediator, who helps them to try to arrive at an agreed resolution of their dispute” –Henry J. Brown & Arthur L. Mariot
Conciliation is another dispute resolution process that involves building a positive relationship between the parties of dispute; however, it is fundamentally different than mediation and arbitration in several respects. Conciliation is a method employed in civil law countries, like Italy, and is a more common concept there than is mediation. While conciliation is typically employed in labor and consumer disputes, Italian judges encourage conciliation in every type of dispute. Conciliation provides for the quick and fair resolution of disputes. The conciliation process is uncomplicated, inexpensive and does not allow for any legal representation. The decision to settle is in the hands of the parties involved.
“Conciliation is a process in which parties to a dispute, with the assistance of a neutral third party (the conciliator), identify the disputed issues, develop options, consider alternatives and endeavor to reach a resolution by agreement”–Monash University
Differences between a ‘mediator’ and a ‘conciliator’:
The ‘mediator’ is the person who explains the ground rules, tries to establish an atmosphere of fairness, and attempts to get the parties expressly to agree that they will make a good-faith commitment to settle the dispute through mediation. The mediator may ask questions to both parties to clarify their respective issues, positions, and needs, and to reduce the hostility, intimidation, or misunderstanding between the parties. So it can be said that the mediator arranges and chairs the discussions and acts as an intermediary to facilitate progress towards settlement.
The “conciliator” is an impartial person that assists the parties by driving their negotiations and directing them towards a satisfactory agreement. It is unlike arbitration in that conciliation is a much less adversarial proceeding; it seeks to identify a right that has been violated and searches to find the optimal solution. A conciliator is impartial and non-judgmental, directs and controls the process but not the content of the conciliation.
Differences between Mediation & Conciliation:
A mediator’s priority is to facilitate the parties’ own discussion and representation of their own interests, and guide them to their own suitable solution- a good common solution that is fair, durable, and workable. The parties play an active role in mediation, identifying interests, suggesting possible solutions, and making decisions concerning proposals made by other parties. The parties come to mediator seeking help in finding their own best solution Conciliation tries to individualize the optimal solution and direct parties towards a satisfactory common agreement. Although this sounds strikingly similar to mediation, there are important differences between the two methods of dispute resolution. In conciliation, the conciliator plays a relatively direct role in the actual resolution of a dispute and even advises the parties on certain solutions by making proposals for settlement. In conciliation, the neutral is usually seen as an authority figure that is responsible for the figuring out the best solution for the parties. The conciliator, not the parties, often develops and proposes the terms of settlement. The parties come to the conciliator seeking guidance and the parties make decisions about proposals made by conciliators. In this regard, the role of a conciliator is distinct from the role of a mediator. The mediator at all times maintains his or her neutrality and impartiality. A mediator does not focus only on traditional notions of fault and a mediator does not assume sole responsibility for generating solutions. Instead, a mediator works together with the parties as a partner to assist them in finding the best solution to further their interests.
Benefits of Mediation & Conciliation:
One of the greatest benefits of mediation is that it allows people to resolve the charge in a friendly way and in ways that meet their own unique needs. Also, a charge can be resolved faster through mediation. While it takes less than 3 months on average to resolve a charge through mediation, it can take 6 months or longer for a charge to be investigated. Mediation is fair, efficient and can help the parties avoid a lengthy investigation and litigation.
On the other hand, conciliation has been found to be most satisfactory in resolving conflicts and in most cases it has alleviated the need for any formal grievance process. Conciliation is particularly useful where there is an ongoing working relationship between the parties.
The terms ‘mediation’ & ‘conciliation’ are often used interchangeably in different institutions in different countries:
Where both terms survived, some organizations use ‘conciliation’ to refer to a more proactive and evaluative from of process. However, reverse usages is sometimes employed; and even in UK, ‘Advisory, Conciliation and Arbitration Services’ (ACAS) applies a different meaning. In fact the meanings are revised. In relation to ‘employment’, the term ‘conciliation’ is used to refer to a mediatory process that is wholly facilitative and non-evaluative. The definition of ‘conciliation’ formulated by the ILO is as followed:
“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”.
Under the law and the UNCITRAL model, the role of the mediator is not pro-active and is somewhat less than the role of a ‘conciliator’. We have seen that under Part III of the Arbitration and Conciliation Act, the Conciliator’s powers are larger than those of a ‘mediator’ as he can suggest proposals for settlement. Hence the above meaning of the role of ‘mediator’ in India is quite clear and can be accepted, in relation to sec. 89 of the Code of Civil Procedure also. The difference lies in the fact that the ‘conciliator’ can make proposals for settlement, ‘formulate’ or reformulate’ the terms of a possible settlement while a ‘mediator’ would not do so but would merely facilitate a settlement between the parties.
Brown quotes that in UK which offers a range of dispute resolution processes, facilitative, evaluative and adjudicative. It is there stated that conciliation “is a process in which the conciliator plays a proactive role to bring about a settlement” and mediator is “a more passive process”. But in an article from US a number of conciliators Mr. Wally Warfield, Mr. Manuel Salivas and others treat ‘conciliation’ as less formal and ‘mediation’ as pro-active where there is an agenda and there are ground rules. In US from the informal conciliation process, if it fails, the neutral person moves on to a greater role as a ‘conciliator’. So in US the word ‘mediator’ reflects a role which is attributed to a pro-active conciliator in the UNCITRAL Model. In fact, in West Virginia, ‘Conciliation’ is an early stage of the process where parties are just bought together and thereafter, if conciliation has not resulted in a solution, the Mediation programme is applied which permits a more active role.
I have thus attempted to clear some of the doubts raised as to the meaning of the words ‘conciliation’ and ‘mediation’. Under Indian law, the conciliation has a greater or a pro-active role in making proposals for a settlement or formulating and reformulating the terms of a settlement. A ‘mediator’ is a mere facilitator and does not have a pro-active role. The meaning of these words in India is the same in the UNICITRAL and Conciliation Rules and in UK and Japan. But, in USA and in regard to certain institutions abroad, the meaning is just the reverse; a ‘conciliator’ is a mere ‘facilitator’ whereas a ‘mediator’ has a greater pro-active role. While examining the rules made in US in regard to ‘mediation’, if we substitute the word ‘conciliation’ wherever the word ‘mediation’ is used and use the word ‘conciliation’ wherever the word ‘mediation’ is used, we shall be understanding the said rules as we understand them in connection with ‘conciliation’ in India.
From the above discussion we can drew a conclusion that there is no difference in principle between mediation and conciliation; both are often described as (ADR) Alternative Dispute Resolution. Both are consensus-oriented mechanisms serviced by a neutral facilitator in which ultimate control of how to resolve the dispute rests with the parties. Some say that conciliation involves a more positive, ‘hands on’ approach in which non-binding expressions of opinion or suggestions may be provided by the neutral facilitator. If the parties require this approach, it can be adequately encompassed within the inherent flexibility of the process.
Moreover, conciliation and mediation both look to maintain an existing business relationship and to revive a lost balance of power between two parties. These concepts are some A times used as synonyms, but they do indeed vary substantially in their procedures. In mediation, the mediator controls the process through different and specific stages: introduction, joint session, caucus, and agreement, while the parties control the outcome. By contrast, in conciliation the conciliator may not follow a structured process, instead administering the conciliation process as a traditional negotiation, which may take different forms depending on the case. Each of the ADR processes addressed herein mediation and conciliation, provides important benefits to parties and may be seen as complementary to the judicial process. In the United States, mediation has emerged as perhaps the most predominant ADR process because it affords the parties the opportunity to develop settlements that are practical, economical, and durable. For commercial disputes, mediation also offers the opportunity to create innovative solutions to business disputes that further the unique interests of the parties in an analytical framework that is broader than traditional legal rights and remedies. In this sense, the mediation process may be used to secure “business solutions to business disputes,” because it encourages the parties to consider all the dimensions of a dispute, including both legal issues and business interests. In all parts of the world, including North and South America, Asia, and India, large and small commercial entities are recognizing the business benefits of mediation. According to international and European trends, mediation is emerging as an effective and often preferred method for private commercial companies and government agencies to fulfill their organizational objectives by privately and promptly resolving disputes in a manner that saves time, money, and business relationships.
Books & Articles:
Crowley, T. E. (1994). Settle it out of court: How to resolve business and personaldisputes using mediation, arbitration and negotiation, 1st Edition, pg.146. 2rd para.
Handbook of City Disputes Panel, (1997), p.127
Henry J. B., and Arthur L. M., (1997), ADR Principles and Practice, 2nd Ed. Chapter 7, p127
Conciliation Process, Retrieved from University of Monash website: http://www.monash. edu. au/equity-diversity/discriminationharassment/conciliation-process.html
Squbini, A., & Marighetto, A. (2004, August). Arbitration, Mediation and Conciliation: differences and similarities from an International and Italian business perspective. Retrieved from LIPSCOMB University, Institutes for ConflictResolution,website: http://www.mediate .com/articles/sgubiniA2.cfm#top
“Can you explain the difference between conciliation and mediation” available at http://www.colorodo. edu/conflict/civil-rights/topics/1950.html
Ficci Arbitration and Conciliation Tribunal, “What is Conciliation/Mediation?” Available at http://www.ficci-arbitration.com/htm/whatisconcialation.htm
ILO (1983) available at http://www.nber.org/oww/Technical_document_1983- 2003_standardizationv3.pdf
Laurence, S. (2003), Mediation: a practical outline available at http://www.laurencestreet. com.au/pub02.htm#tomenu
Rao, M.J. Concept of conciliation and mediation and their differences. Available at http://lawcommissionofindia.nic.in/adr_conf/concepts%20med%20Rao%201.pdf Visited 30th November 2011
Squbini, A., Prieditis, Mara and Marighetto, A.(2004, august) Institutes for Conflict Resolution,visited 1st December of 2011, Available at http://www.mediate. com/articles/sgubiniA2.cfm#top
US Equal Employment opportunities available at http://www.eeoc.gov/ employees/mediation.cfm
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 See US Equal Employment opportunities available at http://www.eeoc.gov/employees/mediation.cfm
 See Laurence, S. (2003), Mediation: a practical outline available at http://www.laurencestreet.com.au/pub02.htm#tomenu
 See Henry J. B., and Arthur L. M., (1997), ADR Principles and Practice, 2nd Ed. Chapter 7,p127
 See Squbini, A., Prieditis, Mara and Marighetto, A.(2004, august) Institutes for Conflict Resolution, visited 1st December of 2011, Available at http://www.mediate.com/articles/sgubiniA2.cfm#top
 See Conciliation Process, Retrieved from University of Monash website: http://www.monash.edu.au/equity-diversity/discriminationharassment/conciliation-process.html
 See Crowley, T. E. (1994). Settle it out of court: How to resolve business and personal disputes using mediation, arbitration and negotiation, 1st Edition, pg.146. 2rd para.
 See Squbini, A., & Marighetto, A. (2004, August). Arbitration, Mediation and Conciliation: differences and similarities from an International and Italian business perspective. Retrieved from LIPSCOMB University, Institutes for Conflict Resolution, website: http://www.mediate.com/articles/sgubiniA2.cfm#top
 See ILO (1983)
 See Handbook of City Disputes Panel, (1997), p.127
 See the article entitled “Can you explain the difference between conciliation and mediation” available at http://www.colorodo.edu/conflict/civil-rights/topics/1950.html
 See Indian Law, sec.30, sec. 64(1) and sec. 73(1) of the 1996 Act