Why Conciliation Is Preferable To Mediation In India

INTRODUCTION

The key alternative dispute resolution process, which is usually followed by people to settle their disputes in an informal way, is arbitration, mediation, and conciliation. They seek to find a compromise with the help of a third independent party through settlement or arbitration and have turned out to be a successful alternative to the litigation process.

WHAT IS ALTERNATIVE DISPUTE RESOLUTION?

If the method of settling the conflict chose by the parties is other than arbitration, in the form of mediation, negotiation, conciliation, Lok Adalat, online arbitration, then it is Alternative Dispute Resolution (herein refe to as ADR).  In the area of business, ADR opens the way and helps to address the matter more quickly and effectively. It is essentially the resolution of conflicts by negotiations. A conflict is resolve in arbitration by enforcing an award, but

ADR is more likely to find a solution to the dispute by bargaining between the two parties. The object of ADR is more than simply offering the parties a solution. It seeks to ensure that the contract is properly operate.

CONCILIATION AS AN ADR MECHANISM

Conciliation is a type of ADR in which the settlement takes place out of court. The court has no role in the arbitral proceedings as a whole. A neutral third party, who is the conciliator, resolves the conflict. The conciliation process is voluntary since it is at the joint discretion of the parties to choose conciliation with the help of the conciliator as a means of settling their conflict, and the proposal is also not binding on the parties. They are free to accept the suggestion offered by the conciliator or not to follow it. It presides over litigation as the parties do not have to go through the technical processes and litigation formalities, but conciliation

helps parties to find an amicable compromise/solution by a friendly search.

KINDS OF CONCILIATION

Voluntary conciliation – This approach requires participants to engage voluntarily in the conciliation process to settle their conflict.

Compulsory conciliation – They will go through compulsory conciliation

if the parties do not want to take the opportunity of voluntary conciliation. In this system, the procedure is said to be compulsory

if the parties do not wish to meet the other party to settle the conflict. This approach is widely use in cases of labor.

MEDIATION IN THE DISPUTE RESOLUTION MECHANISM

Mediation has emerged as the most advanced type of mechanism for ADR. It is one of the mechanisms for coping with human relationships in a constructive way, mostly for the benefit of the persons involve and

for the development of the society. Mediation facilitates a quest for a settlement by the parties involved in the conflict themselves. The central aim of mediation is to provide parties with opportunities to discuss and arrive at a final agreement to satisfy the needs of both sides. It is an assist negotiation and an informal process in which the participants are assist by the mediator, who is the third neutral individual, who has advanced expertise, required qualifications and

ample experience to help the disputed parties for reaching a negotiated settlement.

DIFFERENCE BETWEEN MEDIATION AND CONCILIATION

	Conciliation	Mediation
Meaning	Conciliation is an alternative dispute resolution method in which an expert is appointed to resolve a dispute by convincing the parties to agree upon an agreement.	Mediation refers to a process of settling disputes by independent and impartial third party who assists the parties to reach a common outcome.
Regulation	The Civil Procedure Code, 1908.	Arbitration and Conciliation Act, 1996.
Number of Third party	One or more conciliator.	One mediator.
Confidentiality	In Conciliation Confidentiality is determined by the law.	In mediation confidentiality depends upon trust, and it is advised for all parties to sign a Confidentiality Clause for extra measure.
Nature of third party	In conciliation the conciliator plays a more active role.	In mediation, the mediator should be impartial and objective to the parties’ dispute.
Third party	In Conciliation, the conciliator also plays the role of evaluation and intervention for settling the dispute.	In Mediation, the mediator does not give any judgement.

ADVANTAGES OF CONCILIATION OVER OTHER MECHANISM

In India, the conciliation process is gaining prominence in today’s legal system, and the use of conciliation as a form of dispute resolution has increased dramatically following the development of Lok Adalats. There are several theories that can be related to its creation. Unlike other types of Alternative Dispute Resolution Methods, in essence, its method is less formal

but is more engaging, evaluative and

oriented to the parties’ profit and development.

Some of the obvious advantages leading to its increasing success are:

• It is a versatile mechanism that can be tailor to the needs of multi-dollar conflicts, both small and large.
• The primary concern of the conciliation process is to safeguard the privacy of the parties. A settle agreement drawn up by the conciliator in the form of a dispute settlement agreement shall be keep confidential in nature, and all the facts present by the parties, the points put forth, the minutes of the meetings shall be kept confidential and the conciliator shall be oblige to comply with them. This intense caution for parties’ privacy makes this practice even more appealing from small businesses to big businesses that love to keep their secrets in their sleeves.
• Conciliation proceedings may be terminate if any one of the parties feels the need to do so. Therefore, if a party to the dispute does not comply with the course of the process and settlement, the conciliation will be terminate.

Arbitration

• Unlike in arbitration, the resolution of the conflict is reach by a settlement agreement sign by all parties to the dispute, which can only have a binding effect.  This makes the party bound by a decision through the contractual terms and obligation unlike arbitration where an arbitral award is pronounce by the arbitrator that has the force of law. This makes the process for resolution much more relaxed and flexible and allows the party a say in the final dispute resolution.
• As the name suggests, the conciliation process is conciliatory in nature and therefore does not produce a sense of ill will between the parties. When it comes to disputes between corporations or corporate organizations that operate together on a regular basis or family disputes, this becomes an important topic.
• As an ADR, this is a procedure that is cheaper in design and more cost-effective than court proceedings. In time management, it is also successful as it takes far less time to settle a conflict than
• the long-drawn court cases we are all aware of.
• Because of the obvious transparency in the dispute resolution method, there is little scope for manipulation and corruption.

It is therefore conclude that, because of its flexible, confidential and friendly nature, the conciliation process is highly preferr

by the parties, promoting only the better interests of the parties.