Difference Between Conciliation and Mediation
Conciliation vs Mediation
Both conciliation and mediation are alternative dispute resolution (ADR) methods aimed at resolving disputes without going to court. They are similar in that they involve a neutral third party assisting the disputing parties to reach a settlement, but they differ in process, roles, and legal framework.
1. Definition
Conciliation
Conciliation is a process where a neutral third party (conciliator) meets with the parties separately and together, helps identify issues, reduces misunderstandings, and offers proposals to resolve the dispute. The conciliator may play a more active role by suggesting terms of settlement.
Mediation
Mediation is a voluntary and confidential process in which a neutral third party (mediator) facilitates communication and negotiation between the disputing parties to help them reach a mutually acceptable agreement. The mediator does not propose solutions or impose a decision.
2. Role of the Third Party
| Aspect | Conciliation | Mediation |
|---|---|---|
| Role of neutral | Active role; may propose solutions | Facilitator; helps parties communicate but does not suggest solutions |
| Control of outcome | The conciliator may draft terms of settlement | Parties control the outcome |
| Communication | May be separate or joint sessions | Usually joint sessions, but private caucuses can happen |
3. Legal Status and Formality
Conciliation is often a more formal process and sometimes mandated by law before parties approach courts (especially in labor disputes and industrial relations).
Mediation is generally voluntary, informal, and focuses on collaboration without legal compulsion.
4. Applicability
Conciliation is widely used in labor disputes, commercial conflicts, and statutory disputes where the law mandates conciliation before litigation.
Mediation is used broadly for civil disputes, family disputes, commercial conflicts, and international disputes.
5. Binding Nature
Agreements in conciliation may have more formal recognition, sometimes recorded and made enforceable as per the law.
Agreements reached through mediation are usually contracts between the parties but not enforceable as a decree unless reduced to a consent judgment.
6. Examples and Case Law
Conciliation Case Law:
Bharat Barrel & Drum Mfg. Co. Ltd. v. Employees’ Union (1972) 2 SCC 132
In this case, the Supreme Court of India discussed the role of conciliation officers under the Industrial Disputes Act, 1947. It held that the role of conciliation is to bring parties together and help them reach a settlement, which is voluntary, but the conciliator can make suggestions and actively assist.
Mediation Case Law:
Afcons Infrastructure Ltd. v. Cherian Varkey Construction Co. (P) Ltd. (2010) 8 SCC 24
The Supreme Court emphasized the importance of mediation in resolving commercial disputes. It recognized mediation as a process where parties themselves control the outcome and the mediator only facilitates negotiation without imposing solutions.
7. Summary Table
| Feature | Conciliation | Mediation |
|---|---|---|
| Nature | More formal, sometimes mandated | Informal, voluntary |
| Role of Third Party | Active, may propose solutions | Passive, facilitates dialogue |
| Control over outcome | Shared between parties and conciliator | Fully controlled by parties |
| Legal Framework | Often statutory (e.g., Industrial Disputes Act) | Generally voluntary without compulsion |
| Sessions | Separate and joint meetings | Mostly joint sessions |
| Binding Effect | May be enforceable under law | Agreement is contractual unless court-approved |
| Common Use | Labor disputes, industrial relations | Civil, family, commercial disputes |
In brief:
Conciliation involves a more active third party who may suggest solutions and sometimes works under statutory mandate.
Mediation is a facilitative, voluntary process where the mediator only helps parties communicate without suggesting terms.
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