It is human tendency to be embroiled in disputes and conflicts but it is also equally human to seek resolution and peace of mind. While acknowledging the natural human propensity for conflicts and disputes, it is necessary to seek effective ways to resolve the multitude of disputes and conflicts that seem to crop out every day. William Ury, a renowned mediator, after narrating his famous 17 camel story observed that all disputes always start looking like “17 camels” that is to they always seem almost impossible to resolve.
Every problem or dispute he explains has, as anyone can tell you, two sides, one of each party. However here he seeks to differ and states that every conflict has actually three sides, the third side being that of the community. It is for every community and society to resolve the private disputes of its citizens and members. Every state in the present world therefore allocates a huge amount of its annual budget to resolving disputes by passing legislations, maintaining a judiciary and pumping in money into the enforcement agencies like the state police force. This could all be rendered futile if the parties to the dispute are unable to come to a resolution or are not able to reach closure on a wrong perceived to be done to them or done by them.
The third side therefore, as a member of the community and not party to the dispute, can play a key role in resolving the dispute. It is often noticed that conflicts make people lose perspective and this is where resorting to a third party can be of help. There are different ways of doing this.
Here I seek to discuss two specific ways mediation and conciliation. The difference between mediation and conciliation is very hazy in the west the two terms are almost used synonymously if not to signify the slightest of distinction is some specific jurisdictions. In India the parliament through two specific statutes has created a clear distinction between both these terms. The Arbitration and Conciliation Act 1996 (“1996 Act”), and Section 89 of the Code of Civil Procedure Code, 1908 recognise mediation and conciliation to be two different processes.
Though these processes have been recognised by the parliament and the judiciary, it has not been defined in any of the above mentioned statutes. Firstly a bit about conciliation:
In order to understand what Parliament meant by ‘Conciliation’, one has to refer to the functions of a ‘Conciliator’ as visualized by Part III of the 1996 Act. It is true, section 62 of the said Act deals with reference to ‘Conciliation’ by agreement of parties but sec. 89 permits the Court to refer a dispute for conciliation even where parties do not consent, provided the Court thinks that the case is one fit for conciliation.
This makes no difference as to the meaning of ‘conciliation’ under sec. 89 as it clarifies that once a reference is made to a ‘conciliator’, the 1996 Act would apply. Thus the meaning of ‘conciliation’ as can be gathered from the 1996 Act has to be read into sec. 89 of the Code of Civil Procedure. The 1996 Act is, it may be noted, based on the UNCITRAL Rules for conciliation.
The 1996 Act, make it clear that in the Indian context the ‘Conciliator’ under the said Act, apart from assisting the parties to reach a settlement, is also permitted to make “proposals for a settlement” and “formulate the terms of a possible settlement” or “reformulate the terms”. This is indeed the UNCITRAL concept.
Further in accordance to the 1996 Act once a settlement is reached and the parties sign and the conciliator signs it, the settlement agreement assumes the status of a decree. This is one major differentiating factor between settlements reached through mediation and conciliation and might lead to some issues in regard to enforcement of the same.
It needs to be noted that if the role of the ‘conciliator’ in India is pro-active and interventionist as stated above, the role of the ‘mediator’ is restricted to that of a ‘facilitator’. Now that we have briefly understood the role of a conciliator it would relevant to look at what mediation entails.
The interpretation given by the Supreme Court to Section 89(2) (c) makes mediation a non-binding, non-adjudicatory dispute resolution process, where a neutral third party renders help to the parties in conflict to arrive at a mutually agreeable solution.
To put it differently, it refers to a voluntary and flexible negotiated conflict resolution process with the assistance of experts. It involves a structured negotiation where the mediator listens to the parties, ascertains the facts and circumstances as also the nature of the grievance, conflict or dispute, encourages the parties to open up to find the causes therefore, creates a conducive atmosphere to enable the parties to explore various alternatives and ultimately facilitates the parties to find a solution or reach a settlement. In short, it is a professionally and scientifically managed process where the attempt is made by the mediator to shift focus from the people to the problems.
It is also a process where in the aim is not to push away the emotions and deep wounds of the parties under the carpet and decide only to come to a superficial and convenient settlement. In mediation attempt is made to understand the underlying emotional issues and find means of reaching closure so that the parties do not just resolve the dispute at hand but are able to rebuild past relationships and mend broken hearts.
Further the confidential nature of the mediation proceedings was upheld by the Supreme Court in its decision in Moti Ram v. Ashok Kumar (2011) 1 SCC 466 where it observed that in the event the mediation is successful the mediator should only send the agreement executed between the parties to the Court and not mention what actually transpired in the proceedings. However, if the mediation is unsuccessful, the mediator is expected to send only a statement to the court conveying the failure of the mediation proceedings.
Further as stated earlier although ‘mediation’ and ‘conciliation’ may seem fairly similar to each other a key distinction lies in recognition and enforceability of the settlement arrived at through the two- methods. If the parties arrive at a settlement through conciliation the Agreement is enforceable as if it is a decree of the court where a settlement reached at in mediation needs to be placed before the court which will make it a decree.
Benefits of mediation
Where it is important that the needs of people are taken into account in resolving disputes, then using mediation has many advantages:
- Mediation is more flexible and adaptable to the needs of the people involved.
- The people involved in the dispute can agree to apply their own values to the dispute and not be constrained by legal rules that may not seem right.
- Mediation processes and outcomes, which are different to the formal justice system, may better meet peoples’ needs and interests.
- Attempt is made to resolve the disputes and not just reach a settlement.
- The focus in mediation is helping find closure for the people involved and not just finding a workable settlement.
There is a growing concern as regards the interventionist stance adopted by the Courts with respect to arbitration. The business community as well as the legal fraternity has time and again hinted at the need for the courts to re-look at the way arbitration is perceived to make it an effective alternative remedy.
The Supreme Court has assumed a proactive role while dealing with ADR and went to the extent of setting out the way courts should approach/recommend the ADR methods to litigants under Section 89.
It is therefore heartening to see the trend evinced by the various Supreme Court decisions cited earlier which point towards a more conducive approach being adopted by the courts with respect to mediation and conciliation. The two can be seen to be gaining momentum thereby making the ADR system in the country an effective means of tackling the problem of arrears.
Though mediation and conciliation are both effective. However if the question was what is it that they are effective in doing, the answer we would reach at would be quite different. Conciliation attempts to come to a workable settlement where mediation helps resolve issues and helps people build and mend relationships.