ALTERNATIVE DISPUTE RESOLUTION

DIFFERENCE BETWEEN MEDIATION AND CONCILIATION

FROM: ROHIT DESWAL 8th SEM (BA.LLB) R.NO 1504

SUBMITTED TO: DR.ANUPAM KURLWAL

Mediation and Conciliation

In the present complex society., at least for minor and family disputes, the 'Mediation' and 'Conciliation' are always the better alternative dispute processing mechanism, 'Mediation' and 'Conciliation' are processes whereby a third person attempts to resolve a dispute by creating an environment of empathy and openness in the hope of assisting the parties to understand each Others' position and effect an agreement between them. In mediation, there is a third party, a mediator, who facilitates the resolution process (and may even suggest a resolution, typically known as a 'mediator's proposal), but does not impose a resolution on the parties. In some countries (for example, the United Kingdom), ADR is synonymous with what is generally referred to as mediation in other countries.

General
Mediation involves a determination of interests - the interests of the parties. A concept frequently not found in the litigator's lexicon, interests are the needs, wants, and desires that are of importance to the parties - the answer to the question "what is this dispute really all about for you?" To get there, mediation provides an environment for principled negotiations. These negotiations may at times become frustrating and troubling, but with the mediator's help the parties keep moving forward. Principled negotiations stimulate exploration of settlement alternatives and an opportunity to evaluate those alternatives, weighing them against the likely outcome of going to trial and viewing proposals through the lenses of reality. Mediation - compared to litigation, trial and appeal -

is a veritable bullet train to certainty* and finality. If the dispute settles at the mediation, it settles on a basis acceptable to the parties; the specter of trial is removed; and, the threat of being tied up on appeal is eliminated.

Mediation and Conciliation- Interchangeable Terms

'Conciliation' is a term used interchangeably with mediation and sometimes used to differentiate between one of these processes (often mediation) involving a more pro-active mediator role, and the other (conciliation) involving a more facilitative mediator role; but there is no consistency in such usage. In both the procedures a successful completion of the proceedings results in a mutually agreed settlement of dispute between the parties though, in some jurisdictions, mediation is treated as distinct from conciliation inasmuch as in mediation the emphasis is on more positive role of the neutral third party than in conciliation. Nonetheless, this factor should not make mediation distinctive from conciliation because the range of the role that a mutual third party can perform depends on the nature of the clash, the degree of enthusiasm of the parties and the dexterity of the individual neutrals.

Mediation - Definition
Mediation is a course of action by which disputing parties use the assistance of a neutral third party to act as a mediator-a facilitating intermediary-who has no authority to make any binding decisions, but who uses various procedures, techniques and skills to help the parties to resolve their dispute by negotiation and by

agreement without adjudication. It is a non-binding procedure in which a neutral third party assists the disputing parties in mutually reaching an agreed settlement of the dispute.

Conciliation Definition
Conciliation is an alternative dispute resolution process whereby the parties to a dispute (including future interest disputes) agree to utilize the services of a conciliator, who then meets with the parties separately in an attempt to resolve their differences. Conciliation is now statutorily recognized and the settlement agreement is binding on parties.

MEDIATION V. CONCILIATION
1Mediation:
It implies a stronger form of Intervention and mediator may be permitted to offer to the partys proposals for settlements.

Conciliation:
It is limited to encouraging the parties to discuss their differences and to help develop their own proposed solutions.

2 Mediation:
It is a method not employed in civil law countries And it is not common as conciliation is.

Conciliation:
It is a method employed in civil law countries like Italy And it is a more common concept there than mediation is.

3 Mediation:
It takes mainly in Family disputes namely partition, marriage etc.

Conciliation:
It mainly takes place in Labour and Consumer disputes.

4 Mediation:
It is not yet recognized by statutes. Conciliation: It is the latest development in the ADR system.

5 Mediation:
Attorneys are more active in mediation in generating and developing innovative solutions for settlement.

Conciliation:
Attorneys generally offer advice and guidance to clients about proposals made by conciliator

6 Mediation:
The mediator controls the process through different and specific stages introduction, joint session, agreement etc.

Conciliation:
The conciliator may not follow a structured process.

7 Mediation:
Settlement of dispute without litigation not possible.

Conciliation:
Settlement of dispute without litigation possible.

8 Mediation:
Mediation trend can be observed in UNITED KINGDOM (U.K)

Conciliation:
Conciliation trend can be observed in SRI LANKA.

Arbitration, Mediation and Conciliationdistinction

Conciliation differs from arbitration in that the conciliation process, in and of itself, has no legal standing, and the conciliator usually has no authority to seek evidence or call witnesses, usually writes no derision, and makes no award. Conciliation differs from mediation in that the key goal is to conciliate, most of the time by seeking concession,. In mediation, the mediator tries to steer the discussion in a way that optimizes parties' needs, takes feelings into account and reframes representations. In conciliation the parties seldom, if ever, actually face each other across the table in the presence of the conciliator. (This letter difference can he regarded as one of species to genus),

Elements in Mediation
Most practicing mediators refer to the practice of meeting with the parties separately as 'caucusing' and would regard conciliation as an explicit type or form of mediation practice 'shuttle diplomacy' that relies on exclusively on caucusing. All the other features of conciliation are found in mediation as well it the conciliator is successful in negotiating an understanding between the parties, said understanding is almost always committed to writing (usually with the assistance of legal

counsel) and signed by the parties, at which time it becomes a legally binding contract and falls under contract law. The classic mediation has no formal compulsory elements, although some regular elements are by and large found; Every disputant having a chance to tell his or her story; Classification of issues, usually by the mediator; The elucidation and thorough specification of the respective interests and objectives, The conversion of respective subjective evaluations into more objective values, Identification of options; Discussion and scrutiny of the probable effects of diverse solutions; The fine-tuning and the refinement of the connected facets, Reducing the agreements into a written sketch,

Mediation: Its Stages

The process of mediation can be easily divided into ten stages as given follows: Stage 1-Selection of Mediation/Conciliation Centre; Stage 2-Execution mediation/conciliation; Stage 3-Furnishing correspondence; of of Contract in

information

and

Stage-4 Meeting of parties; Stage 5-Familiarising mediator with facts about dispute; Stage 6-Gathering information; Stage 7-Faciliating Negotiations; Stage 8- A stage of impasse; Stage 9-Termination agreement; and of mediation or achieving

Stage 10- Post-termination stage.

Conciliator and Mediator

A Conciliator and mediator assist each of the parties to independently develop a list of all of their objectives (the outcomes which they desire to obtain from the conciliation). The conciliator then has each of the parties separately prioritize their own list from most to least important. He then goes back and forth between the parties and encourages them to 'give' on the objectives one at a time, starting with the least important and working toward the most important for each party in turn. The parties rarely place the same priorities on all objectives, and usually have some objectives which are not on the list compiled by parties on the other side. Thus the conciliator can quickly build a string of successes and help the parties create an atmosphere of trust which the conciliator can continue to develop. The mediator is a facilitator, who may, in some models of mediation, also provide a non-binding evaluation of the merits of the, dispute, if required, but who cannot make any binding adjudicatory decisions.

Qualities of Mediator and Conciliator

The arbitrator/conciliator/mediator is expected to have the qualities of patience, sincerity, maintenance of confidentiality of the dispute and Wisdom of Solomon, Henry Brown and Arthur Marriott have identified following traits and qualities which a mediator should possess to succeed in his efforts in achieving a settlement of a dispute:

(1)

Understanding

The ability to understand with sensitivity the issues, often complex, and the concerns and aspirations of the parties, explicit and implicit. (2)

Judgment

A sound Judgment, a judicious and rational approach and shrewd commonsense.

(3/

A ability to sense information without any rationalization, obtained through perceptiveness to verbal and other signals received, (4}

Intuition

Creativity
A creative and inventive response to the problems of the case, generating options and encouraging the parties to explore ideas,

(5)

Trust worthiness
Integrity coupled with a sense that trust can be reposed in the mediator,

(6)

Authority

A firmness of touch in managing the process effectively and constructively.

(7) Empathy
An ability to the relate the parties in a sympathetic way and to reflect an awareness of and respect for their concerns.
(8)

Constructiveness
A practical turn of mind that sees positive possibilities and can motivate

the parties to deal constructively with settlement options.

(9) Flexibility
An ability to cope with change, with unusual situations, ideas and solutions and with rapidly varying circumstances.
(10)

Independence

It includes ability to work autonomously, without support or feedback, and to maintain a neutral and independent stands.

Selection of Mediator and Conciliator

Choosing a mediator/conciliator is one of the most important aspects of mediation. He has to control and structure the mediation process. He defuses emotional tensions and keeps the process of communications open to achieve settlement, of the dispute. The following questions should be asked while choosing a mediator: 1. What is the training and background of the mediator? 2. What type of experience generally the mediator has in mediation? 3. What type of experience has the mediator had in the particular type of dispute at hand'? 4. Does the mediator claim to have a particular area of expertise? 5. What is the style of the mediator? 6. Is the mediator a member of any ADR organization? 7. What is the mediator's fee? How are payments arranged? 8. Can the mediator provide adequate facilities? 9. Does the mediator require the submission of summary reports? 10. Is the mediator affiliated with neutral service provider companies? 11. Does the mediator use an agreement to mediate? Does it cover disclosure of information, confidentiality, expected length of process termination of mediation, payment?

Strategies in Mediation
Seating the participants: in proximate distance with the mediator. Opening Statement of Mediator Introduction of Participants Commend them for willing to cooperate Explain mediation process and goals Establishing ground rules for confidentiallycaucusing Manner for presenting arguments, Finally obtain joint agreement to begin Collect opening statement of parties
Organize composite list of issues, written submissions

opening statements

Methods of Mediation
In USA different methods of Mediation involving third party facilitators

(i) Three Layer Mediator Panel

They are attached to Wype Country, Circuit Court in Detroit Michigan. The Lawyers submit their case summaries to panel for review. The panel evaluates the case and informs of its conclusion. The court enters the judgment.

(ii) Rent a Judge Program

The disputants consent to a form of compulsory arbitration before an individual (often a retired judge). The decision of this arbitration is final like a court decision. It saves time and avoids unnecessary procedural technicalities

(iii)Quick Look Proceedings

One Cleave land court permits selected cases to be presented in summary form to six member juries which render advisory opinions. If the abbreviated proceedings do not prompt voluntary settlement then the court gives final decision.

(iv)Mini Trials
Under American judicial system a system of Mini trials has been developed. Though it consists essentially of an abbreviated, adversarial evidentiary presentation called an 'information exchange' This system of mini trials avoids higher litigation costs and the result is more satisfactory to the parties and the relations between disputants remain amicable. It is cheap, quick and amity generating. In mini trials, there is a third party neutral advisor, who acts as facilitator or catalyst of negotiated settlement, though he lacks power to compel a solution or to bind the parties. Thus the mini trials are just like mediation and Non-binding Arbitration

Types of Mediation

Disputes

Resolved

by

1. 2. 3. 4. 5. 6. 7. 8.

Aviation Banking and finance Boundary Disputes, Broker Liability Business Disputes, Charities Clinical & Medical Negligence, Compensation Commercial agencies-Commercial contracts Construction & Development-Corporate finance Distribution agreements-Employment Energy Engineering & Manufacturing Disputes 9, Environmental issues, financial Services (10) Franchises Group/ Class actions (11) Information Technology, insolvency Bankruptcy
(12) Insurance & Reinsurance Intellectual

Property, Trade Mark and Copyright (13) Landlord & Tenant Leasing and Supply Contracts (14) Lender Liability, Libel & Defamation (15) Maritime & Shipping, Multiparty actions (16) Neighbour Disputes Nuisance

Oil & Gas ContractsPartnership Dispute (18) Passing-off Actions Pensions (19) Personal InjuryPollution Claims (20) Product Liability Personal Indemnity
(17)

(21) Property and Real Estate-Publishing, Television Broadcasting Rights (22) Railway Industry-Transport Regulatory Disputes (23) Securities and Shares-Shareholder's Disputes

Mediation - A Season for All Things

The eldest branch of mediation applies to business and commerce, and still this one is the widest field of application, with reference to the number of mediators in these activities and to the financial range of total exchanged values.

Mediation Commerce
(i)

in

Business

and

The mediator in business or in commerce helps the parties to achieve the final goal of respectively buying/selling (a generically contraposition that includes all the possible varieties of the exchange of goods or rights) something at satisfactory conditions (typically in the aim of producing a synallagmatic contract), harmonically bringing the separate elements of the treaty to a respectively balanced equilibrium. The mediator, In the ordinary practice, usually cares of finding a positive agreement between (or among) the parties looking at the main pact as well as at the subsidiary pacts too, thus finding a composition of all the related aspects that might combine in the best possible way all the demands of his clients. The subfields include specialized branches that are very well commonly known: in finance, insurances, shipbrokering, rel estate and some other particular markets, mediators have an own name and usually obey to special laws. Generally the mediator cannot practice trade in the genre of goods in which he is a specialized mediator. (ii)

Advantages of Mediation

Mediation deals with the root causes of the problems or conflicts. Settlement through mediation is lasting because the parties are encouraged to think about the basic reasons of dispute, 2. Meditation improves the communicative capacity of the disputants

3. Mediation is not strangers like courts but are friends and the disputes are settled in a friendly manner and the disputants part as friends.

4 Mediation is neither coercive nor threatening. Mediation is voluntaristic as it allows the disputants to solve their problems themselves.
5

Mediation is means of reducing tension in the community. Mediators attempt to reduce social conflict before it escalates into violence. Mediators sometimes suggest the future course of action to reduce tension. Mediator helps the parties to reshape their thinking about each other and to recognize ways to minimize their natural hostility. However at times it is not feasible to mediate cases between parties unequal in power.
6

7 Mediators are not professionalized and do not require long training as is the case of judges, lawyers, court officials and police. 8 Mediation is speedier, less costly and fairer than adjudication because the procedure is less cumbersome and the chances of misleading the Mediator are remote. Since the parties themselves evolve a solution to their dispute, the decision is normally fairer and satisfactory. Mediation can reduce court congestion and delay if all the cases not appropriate for court process are directed to mediation centres. Mediation centres can relieve courts from handling minor problems and leave them free to deal with more serious cases. 9 Unlike judges, mediators represent the society and share its values.

Mediation is more suitable for people, than litigation. The judge in litigation deals with the case in an impersonal and detailed manner. He depends upon material evidence and proofs and on rigid rules. He deals with disputants mostly on paper and imposes a solution that rests on command of authority. The mediator on the other hand depends on his personal relations with, and personal influence on, the disputants and on his own information and personal observation of dispute and circumstances. A Mediator is more dynamic than the judge and can persuade both parties to give concessions and reach compromises. The role of the mediator is to identify common ground of interest between the parties by identifying and pointing out the weaknesses in each side's position. He also tries to understand and deal with the assumptions and perceptions on each side. Once this is done, then the parties are able to focus on the issues which will bring about the settlement. 10 The most important thing is that there is no 'winner' or looser' as in the court decisions. Both parties are always winners, at least in terms of saving time, money, and the hardships of litigation. Mediation is also face saving. The essence of mediation is that each issue whether procedural or substantive is resolved by joint agreement of the parties. (iii)

Global Relevance

The rise of international trade law, continental trading blocs, the World Trade Organization and its opposing antiglobalization movement, use of the internet, among other factors, seem to suggest that legal complexity is rising to an intolerable and undesirable point. There may be no obvious way to determine which jurisdiction has precedence over which other, and there may be substantial resistance to settling a matter in any one place. Accordingly, mediation may come into more widespread replacing formal legal and judicial processes sanctified by nation-states.

Some, like the anti-globalization movement believes that such formal process have quite thoroughly failed to provide real safety and closure guarantees that are prerequisite to uniform rule of law. Following an increasing notoriety of the process, and a wider notion of its man aspects and eventual effects, mediation in recent times is frequently proposed as a form of resolution of international disputes, with attention to belligerent situations too. (iv) Courts, with their traditional adversarial procedures are not always the best mechanism for solving minor disputes. At least for minor conflicts, the need of the time is to develop non-traditional procedure and the dispute resolution institutions, which do not rely upon adversary proceedings. Small claims courts in America. Australia and England are the best examples which often rely on mediation and conciliation. In addition, there are number of Community Dispute Resolution centres in U.S.A. which are less expensive, more expeditious and helpful in making the courts more efficient by reducing their case load, in England, many advice giving agencies e.g. .Citizen's Advice Bureau, Marriage Guidance Council and many other, staffed by volunteers and financed by voluntary contributions, act as mediators to settle the small disputes. There are some people who normally serve as mediators for example, shop-stewards. Union officials and supervisory staff, to whom people with problems approach. It may be a dispute involving pay, redundancy or dismissal, accusations of discrimination by foremen or disagreements between workers. Government paid social workers also help in solving problems of clients who have problems with local and central Government. Individuals may also turn for help to policeman, clergyman* doctor, school Head master, to seek advice on a wide variety of problems. In Philippines, Mediation is widespread as a form of dispute resolution. The Philippines National Labour Relations Board often relies on mediation for solving employee/management disputes; the field staff of Ministry of Agrarian reform commonly utilizes mediation process to

Future of Mediation

handle conflicts between landlord and tenants, the Ministry of Education and Culture frequently uses mediation to deal with controversies between employees of the public schools. In each of these instances the use of mediation for dispute settlement is under the control of state Third party intermediaries are also asked to resolve about 90 percent of complaints brought to the municipal courts. In villages, Mediation is normally used to resolve disputes Bv Presidential decree No. 1508, the village level mediation is a pre-condition to legal proceedings in the courts of formal adjudicative system.

University failed to make reasonable adjustments for a student with dyslexia.

Impairment: Learning Disability Sector: Education & Training

Summary:
A 19 year-old student with severe dyslexia had a confirmed place on a Finance & Accounting Degree to commence at the start of the year. On the first day of term, the Complainant was told that they could sit in on lectures but could not go through the enrolment process. The parents had a meeting with the Academic Director and a member of staff from Admissions. They were informed that the College did not want the administrative burden of recruiting and employing a note taker, and had decided to withdraw the offer of a place at the College. Three days before the beginning of term, the Academic Director had informed the Complainant's parents that he thought that the family had agreed to organise the note taker themselves. Admissions apologised for this and re-assured the student that everything would be fine for the beginning of term. Whilst the Academic Director acknowledged that more might have been done to enable the student to keep his place on the course, it appeared that the Complainant was rejected from the College for reasons related to their disability, and that no reasonable adjustments had been made. The Complainant had difficulty finding another place on a similar course (due to having dropped an A level on the recommendation of the College) and felt that they had not been able to exercise real choice in terms of a finding a replacement university place.

Outcome: Full and final settlement was reached.

The duties and responsibilities imposed on the College by Part III of the Disability Discrimination Act 1995 were discussed. Parties discussed what actions should have taken place to ensure that the Complainant could have studied at the School, the personal impact of the events and the condition of dyslexia and its impact. The College's disability policy and procedures were also discussed. The College agreed to assign a member of staff to be responsible for ensuring that the College complied with the DDA. This person would be their Disabilities Officer and would have ongoing responsibility to support students with disabilities. This Disabilities Officer would be appointed within one year and it was agreed that information would be sent out to the Complainant about the training received by this Officer. It was also agreed that all full-time staff would be trained in disability awareness and that this training would be incorporated in induction training for new staff. The Complainant would be told the percentage of staff that had been trained at the end of the calendar year. The Academic Director agreed to put in place some public dyslexia awareness information for students - such as a poster - by the beginning of October. The Director agreed to identify the Disabilities Officer in the College's prospectus and on its website, including the Officer's name, role and contact details. The College would make it clear that the Officer's support would be available to both current and new students. It was agreed that a written apology would be sent from the Chair of the College to the Complainant by a specified date. This would include apologies for the stress caused to the student and for the College not meeting the anticipatory requirements of the DDA.

Compensation of 3,500 was agreed. Through conciliation, the DCS offers disabled people a uniquely accessible and empowering alternative to court or tribunal action, as a way of exercising their civil rights under the Disability Discrimination Act 1995 (DDA). We provide an opportunity to resolve complaints relating to DDA Part lll (Goods and Services) and DDA Part lV (Education).

What is Disability Conciliation?

Disability Conciliation is an opportunity for disabled people and service providers to resolve cases under the DDA. It is a "win/win" situation where parties come together in a one-off meeting to find their own solutions.

Conciliation:

Is free of charge Takes less time than court Is a confidential process Enables negotiated outcomes between the parties Leads to real social change

BIBLIOGRAPHY:

An Introduction to Alternative Dispute Resolution System. By Dr. Anupam kurlwal

1.

Arbitration and Conciliation Act, 1996 wit Alternative means Of Settlement Of Disputes. By Dr. S.C. Tripathi
2.

www.citehr.com ... Labor & Employee Relations

3.

www.scribd.com/.../Difference-betweenarbitration-conciliation-nego...
4.

http://www.hrmindex.com/hrforum/legal/2938-difference-betweenmediation-and-conciliation.
5.

http://www.wisegeek.com/what-is-thedifference-between-conciliation-andmediation.htm
6.

7. http://www.dcs-gb.net/