INTRODUCTION
Conciliation and Mediation are one of the key concepts of the Alternate Dispute Resolution for solving disputes between parties. ADR Method is used to solve the disputes in other methods rather than the traditional methods to come up with a solution which is more informal and comfortable way to approach the cases or disputes between the parties. There are different methods to deal with the disputes in a world level scale. Since the olden days, the disputes were always resolved in front of a wise person who would advise both the parties regarding the disputes. Likewise, in this following article we are going to study two different methods of Alternate Dispute Resolutions.
CONCILIATION
Conflicting parties can settle their issues by meeting with a conciliator, a neutral third party, as part of the conciliation dispute resolution process. The conciliator makes an effort to enhance
communication, clarify the problem, and assist the parties in coming to an agreement throughout the conversation. Conciliator plays an important part in finding the result of the problem and make it less stressful for the parties. In conciliation, the conciliator takes less stringent steps in coming up for a solution. Part III of the Arbitration and Conciliation Act, 1996 deals with conciliation. it is a voluntary proceeding where parties in dispute agree to resolve their dispute through conciliation. It is a flexible process which allows the parties to decide the time and place for conciliation, structure, content and terms of negotiations. In Conciliation, the conciliators are trained and qualified neutral person who help the conflicting parties to make them understand the issues in dispute and their interest to reach mutually accepted agreements. The conciliation process includes the discussion between the parties which is made with the participation of the conciliator. It includes disputes like industrial, marriage and family disputes. This allows the parties to control the output of their dispute. The result is also followed by agreeing of the parties.
TYPES
Voluntary Conciliation- In this method parties can voluntarily participate in the process of conciliation for resolving their dispute.
Compulsory Conciliation- If parties do not want to take the opportunity of voluntary conciliation, then they can go for compulsory conciliation. In this method, if the parties do not want to meet the other party to resolve the dispute, then the process is said to be compulsory.
PROCESS OF CONCILIATION
The goal of the conciliation process is to settle the disagreement quickly and cost-effectively on mutually agreeable terms. According to Section 62 of the Arbitration and Conciliation Act,1996 conciliation will begin when one party sends the other party a written invitation to settle the dispute through conciliation. If the other party accepts the invitation in writing to mediate, the procedure will start. It shall be regarded as a rejection of the invitation if the other party declines the invitation or if the party who is open to conciliation does not hear back from the other party within 30 days. The submission of both parties’ statements to the conciliators is described in Section 65.
As required by the conciliator, each party should provide a succinct written statement describing the issue. The statement should outline the main grounds of contention and the general nature of the disagreement. A copy of each party’s statement must be sent to the other. The conciliator may also request the submission of written statements outlining the parties’ disagreements, the reasons for a settlement, and other matters. These assertions must be supported by data, documentation, or visuals. The other party must receive a copy of the same statement. Conciliator can also request for additional documents whenever he needs them. According to Section 67(3) and 69(1) of the acts, the conciliator can set up meetings for the parties or he can meet parties together or separately. The place of meeting can be decided by parties or conciliators. He can also communicate with the parties orally or in written form. He must also consider the party’s expressed wishes like quick settlement of the case which also depends upon the circumstances of the case.
MEDIATION
A non-binding and informal process for resolving disagreements, Mediation is one of the alternative dispute resolution methods. The parties have complete control over the mediation process. The mediator serves as a go-between, assisting the parties in reaching a mutually agreeable resolution to their conflict. They are skilled individuals, occasionally attorneys, who help the disputing parties come together at a neutral location to talk about their problems and attempt to negotiate a resolution. A mediator uses a certain style of dialogue and communication to settle the parties’ conflict.
Here the parties also have an option of choosing the mediators themselves or the court can appoint a mediator to them. Mediator cannot take the decision for the parties; the parties need to decide the final result for themselves. It is not up to mediators to determine what is just or unfair, right or wrong. The mediator cannot force his opinions on the parties, but he can make suggestions and assist them in coming to an amicable arrangement. The parties to the disagreement may meet jointly or separately with the mediator, and the mediator may offer ideas for compromise or offer counsel and assistance. However, the mediator is not allowed to force their viewpoint on the parties or attempt to resolve the conflict by force.
Although there are no official rules or procedures in mediation, it is an informal technique of resolving disputes. The parties are not required to abide by the mediation’s decision. Even though the disputing parties have consented to the mediation process, they are not required to accept the mediator’s suggested opinion. The mediator can make recommendations, express opinions, and state what should be done or not done, but he cannot compel the parties to attend mediation if they are not willing to do so.
TYPES
Mediation is generally classified into two types:
- Court Referred Mediation: The court may refer the pending case to a mediator for mediation if they think there is possibility for the settlement of the case. The act of referring cases is given in Section 89 of the civil procedure code, 1908. These kinds of mediation are used in matters like divorce cases or cases which deals under Negotiable Instrument Act, 1881.
- Private Mediation: In this type of mediation, a qualified professional serves as the mediator. They can be contacted by members of the general public, officials from the government, business professionals, or anybody from the legal system to resolve a disagreement through mediation.
PROCESS
A joint session to establish the agenda, clarify the issues, and discover the position and/or concerns of the parties usually precedes mediation. This gives the parties the option of attacking the resolution process group- or issue-by-group. The mediator meets separately with each party or their legal representative after the combined session. This enables each side to confidently express and elaborate on their stance and mediation objectives. Additionally, it allows the mediator a chance to raise issues that can lead an advocate to question the legitimacy of a given stance.
It has often been observed that Mediation and Conciliation have been observed synonymously in India but they are in many aspects different from each other. There are a total of 839 Mediation centers in India which serve the public. Serving the world’s largest democracy can be insanely tough for the courts, so the ADR mechanism was developed where the disputes could be solved through an easier way and it was especially developed to reduce the burden of courts and reduce the cases which have been pending in the courts since years.
CONCLUSION
The goal of mediation and conciliation is to settle the conflict through a round table negotiation process. It is the method that lowers the burden on courts the best. It encourages positive interactions between the parties. These methods of dispute resolution are so successful and widely accepted that courts have begun to recognize them more frequently, such as mediation. This avoids the court process and the decision for a fair and unbiased resolution of a person’s disputed issues based on legal and moral principles that are grounded in actuality.
Abhilipsa Priyadarshini
2nd Year B.A. LLB
Symbiosis Law School, Noida
