Difference Between Conciliation and Mediation

Finding efficient and amicable ways to resolve disputes is important. Two of the most prominent alternative dispute resolution (ADR) methods are conciliation and mediation. Both are preferred for their ability to help parties reach a settlement outside the courtroom, thereby saving time, costs and often preserving relationships.

However, despite their similarities, these methods have distinct characteristics and are suitable for different types of conflict situations.

Definitions and Basic Concepts

Mediation is a facilitated negotiation process in which a neutral third party, called the mediator, helps disputing parties find a mutually acceptable solution. The mediator facilitates communication, promotes understanding and focuses the parties on their interests rather than their positions. Unlike a judge or an arbitrator, the mediator does not decide the case but helps the parties to come to an agreement themselves.

Conciliation, on the other hand, involves a conciliator who takes a more active role in the dispute resolution process. While similar to mediation in its basic form, conciliation allows the conciliator to propose solutions, make suggestions and actively work towards settling the conflict. The conciliator may meet with the parties together or separately and will try to find a fair solution by influencing the parties towards a compromise.

Key Differences Between Conciliation and Mediation

Role of the Third Party

1. In mediation, the mediator acts as a facilitator only. They do not impose their ideas or suggest terms of agreement. Their role is to guide the process and ensure that communication between the parties is effective, helping them to understand each other’s viewpoints and work towards a resolution on their own.
2. In conciliation, the conciliator plays a more directive role, often suggesting possible solutions and influencing the outcome of the process. The conciliator can evaluate the situation, provide expert advice and propose terms for settlement, directly affecting the final agreement.

Outcome Control

1. Mediation leaves the control of the outcome entirely up to the parties involved. The mediator does not make decisions but helps the parties to reach their own agreement, which can lead to more durable and acceptable outcomes for all involved.
2. Conciliation might see the conciliator having more influence over the final outcome. Although the final agreement is technically made by the parties, the conciliator’s suggestions can heavily influence the terms of the settlement.

Confidentiality and Proceedings

1. Both mediation and conciliation are confidential processes. However, the structure of mediation can often be more flexible than conciliation, adapting to the needs and dynamics of the parties.
2. Conciliation might follow a more structured approach, depending on the rules of the conciliation framework under which the process is being carried out.

Regulatory Framework

• Mediation often lacks a formal statutory basis in many jurisdictions but is governed by practice codes and standards [Civil Procedure Code, 1908] established by mediation bodies. Some regions have incorporated mediation into their judicial processes, giving mediators certain protections and responsibilities under local laws.
• Conciliation is sometimes more regulated. For example, the United Nations Commission on International Trade Law (UNCITRAL) has developed specific rules for conciliation. These rules are designed to standardise aspects of the conciliation process across different jurisdictions, making it a preferred method for international disputes.

To further illustrate the differences between mediation and conciliation, the following table summarises the key aspects of each process:

Choosing Between Mediation and Conciliation

The choice between mediation and conciliation depends on several factors:

• Nature of the Dispute: If the parties seek a more hands-on approach from the neutral party in crafting a solution, conciliation might be preferable. In cases where parties want to retain full control over the process and outcome, mediation is ideal.
• Relationship Between the Parties: For parties that have an ongoing relationship, such as business partners, mediation can be beneficial as it focuses heavily on maintaining relationships beyond the dispute.
• Legal Framework and Requirements: Depending on the legal requirements or recommendations in the jurisdiction or industry, one method may be more appropriate or even mandated over the other.

Conclusion

Both mediation and conciliation offer valuable pathways to dispute resolution, each with its own merits and suitable contexts. Conciliation involves an advisory third party who proposes solutions, while mediation uses a neutral facilitator to help parties reach a mutual agreement. Understanding the difference between conciliation and mediation allows disputing parties to select the most appropriate approach, leading to more effective and satisfactory resolutions. By choosing the right method, parties can resolve their conflicts in a way that is not only efficient but also preserves relationships and provides a foundation for future cooperation.