They briefly discussed the distinction between mediation and conciliation, as per Indian law. The discussion continued in a series of emails. Mr. Sriram Panchu was kind enough to set out his views in detail, in the said emails. Arjun Natarajan’s views on the subject are contained in INDIAN MEDIATION LAW BLOG, in a series of articles.
This piece only documents Mr. Sriram Panchu’s views on the subject, as expressed by him in the said emails. With his express permission, they are being carried in INDIAN MEDIATION LAW BLOG.
More than one year down the line, INDIAN MEDIATION LAW BLOG is elated to be carrying Mr. Sriram Panchu’s views on the distinction between mediation and conciliation, as per Indian law.
Mr. Sriram Panchu is clear that:
(i) Mediation and conciliation are synonymous. Justice Raveendran’s judgment in the Afcons case also makes this clear
(ii) Part III of The Arbitration and Conciliation Act, 1996 will thus cover private mediation.
(iii) Therefore, any settlement reached through this process is enforceable as an arbitral award by consent .
(iv) UNCITRAL itself has accepted that mediation and conciliation are synonymous. In this regard, see, the current draft UNCITRAL Convention and Model Law on enforcement of international settlement agreements. India is subscribing to this Convention. It will be signed shortly.
Mr. Sriram Panchu is of the view that India was wrongly advised to take a stand earlier that mediation and conciliation are different.
His book, Mediation Practice & Law, published by LexisNexis, sets out his position clearly, especially, Chapter 17, which is titled Law in India – Legislation. The said chapter has a full discussion.
Mr. Sriram Panchu emphasises on the need for a better law on mediation, providing for immunity, limitation, qualifications et cetera. However, he clarifies that, the need for a better law does not mean that there isn’t a law now, or that, there are no provisions now providing for the basics. He trusts that the better law will also clear up this confusion by simply using the term mediation and saying it is synonymous with conciliation or any other like method.
Mr. Sriram Panchu opines that, there is a need for a comprehensive statute and one good thing it will do is, to clear up this confusion.
In sum and substance, Mr. Sriram Panchu’s views on this subject of mediation vis-à-vis conciliation, are as under:
1 Basically, mediation and conciliation are terms referring to the same process – a neutral who helps parties to come to an amicable resolution of their disputes, the neutral having no decision making power, and the process being voluntary and confidential.
2 There is no basic difference between mediation and conciliation. Where differences are attributed, if one looks closely the differences disappear. It is said that conciliation is more interventionist. That may be valid if mediation is only facilitative. However, mediation can also be evaluative, and the shift worldwide is more towards that. It is certainly the norm in Asia – see Joel Lee’s book on the Asian style of mediation.
3 Evaluative mediation is interventionist. So, in this view of the matter, there is no difference between mediation and conciliation.
4 It is said that the conciliator makes suggestions, the mediator does not. On the contrary, evaluative mediators make suggestions and proposals for parties to consider. They, however, do not tell the parties what to do, nor do conciliators.
5 Internationally, it is now being recognised that the two terms are synonymous, and that mediation is the more widely used term, and that it is preferable to use this term. Even UNCITRAL, which was using the term conciliation, has now shifted to mediation. See the latest draft Convention on Enforcement of International Commercial Mediated Settlements. There is a clear explanation on why the shift is made.
6 The Afcons judgment of the Supreme Court, authored by Justice Raveendran, unambiguously holds that the two processes are synonymous. Therefore we should give private mediation the legal umbrella of being equated with conciliation as under the Arbitration and Conciliation Act. Therefore a settlement agreement reached in mediation will have the same force as an arbitral award by consent as per Section 74.
It is well recognised that Sec 89 CPC was badly drafted. That includes the use of the two terms “mediation” and ” conciliation”which mean the same thing.We should soon have a Uniform Mediation Act which is comprehensive and clearly worded to rectify the situation. Till then we should proceed on the basis that the two terms are synonymous, that court – annexed mediation is governed by CPC and Rules under Sec 89, and private mediation comes under Arbitration and Conciliation Act.
If we keep insisting on the difference we will only being doing harm to the development of mediation. It will then be said that a mediator made proposals, therefore the settlement is vitiated. Or that a conciliator didn’t make proposals, therefore the settlement is bad. Or that the agreement is termed as a mediation agreement and won’t be implemented by Court even if the process has been duly followed. We should avoid these misunderstandings.
7 As responsible mediators we should harmonise, look at the essence, identify best interests of stakeholders, and see how to move forward. We should not fall into legal straightjackets of narrow interpretation to create a difference without distinction.