Both the conciliation and mediation processes can help parties come to an agreement without going to court, but there are some key distinctions between the two.
This post will define each, offer an overview of the main differences between them, and highlight the best times to use each dispute resolution method.
Defining Conciliation and Mediation
The conciliation process involves a neutral third party, a conciliator, appointed by the disputing parties to persuade them to reach an agreement through mutual discussion.
The conciliator plays an advisory role in the conciliation session. This person will suggest potential remedies to disputed issues. In this way, a conciliator not only facilitates the negotiation but also offers solutions.
On the other hand, the mediation process involves an unbiased third party, called a mediator, who is mutually appointed by both parties to help them reach an agreement that is mutually accepted by the parties concerned in the dispute.
Mediation is an interactive and collaborative process, where the mediator attempts to help the interested parties find the best possible solution to their dispute. A mediator facilitates conversation to help resolve key differences between parties and reach an agreement.
The Differences Between Mediation and Conciliation
At this point, you probably think that mediation and conciliation sound pretty similar to one another, and, the truth is, they are. However, there are some key differences between mediation and conciliation that you should be aware of.
First, the laws governing conciliation and mediation are different. Conciliation is regulated by the more modern Arbitration and Conciliation Act of 1996, and mediation is regulated by the Code of Civil Procedure from 1908.
The confidentiality of conciliation is fixed by law. Neither the parties involved nor the conciliator is permitted to share the details of the proceedings with external parties. On the other hand, the confidentiality of a mediation session relies on the trust between the parties involved and the mediator.
Obviously, the roles of the conciliator and mediator are slightly different in each process as well. A conciliator not only facilitates communication between parties but also acts as an evaluator and intervener offering potential solutions.
A mediator facilitates communication between parties and helps them attempt to resolve differences, but they are not actively working to offer potential solutions to the dispute at hand.
At the conclusion of the mediation, the involved parties reach an agreement that is enforceable by law. At the conclusion of conciliation, the involved parties reach a settlement agreement that is binding upon the parties much like an arbitral award.
The Benefits of Conciliation and Mediation
Conciliation and mediation are important tools for resolving disputes in a cooperative, non-adversarial manner.
When faced with disagreement, instead of engaging in costly litigation, parties can choose to pursue resolution through conciliation and mediation – processes that enable them to actively participate in their own outcomes without the need for third-party intervention.
This not only saves time and money, but it also allows participants to better articulate their perspectives, increasing the potential for a mutually beneficial agreement that everyone can be happy with.
Additionally, these proceedings often encourage future collaboration between the two disputing parties, as they both recognize how much more effective alternative dispute resolution such as conciliation and mediation is.
The Times to Choose Mediation or Conciliation
We have spent a lot of time highlighting how conciliation and mediation differ from one another. However, in essence, both approaches to dispute resolution are very similar.
Both processes are non-judicial and non-adversarial, voluntary, and should be a mutually chosen alternative to litigation. Bearing all of these similarities in mind, when should you choose mediation or conciliation?
You should choose mediation or conciliation when you want to avoid lengthy, costly, legal battles. Protracted court proceedings not only take a financial toll, but they can also take an emotional toll since litigation is often an adversarial process.
If maintaining working or emotional relationships between the disputing parties is important, mediation and conciliation will be far more effective at accomplishing this than litigation. Furthermore, if legal costs are a concern, mediation, and conciliation both offer a more affordable alternative to court.
Finally, if time is of the essence, mediation, and conciliation will be a better choice to handle your disputed issues. These processes are much faster than court proceedings, which can drag on for months and years.
Although both mediation and conciliation are similar, there are key differences between the two that can help you decide which is best for your needs.
Ultimately, both have their benefits and can be useful in helping to resolve disputes. The key is to understand when to use each one and what will work better for your specific situation.
By being informed and knowing when to use each method, you can ensure that you are using the best possible option for resolving your dispute.