CONCEPTS OF CONCILIATION AND MEDIATION （调解的概念和中介）.pdf

CONCEPTS OF CONCILIATION AND MEDIATION AND THEIR DIFFERENCES by Justice M. Jagannadha Rao One of the questions constantly asked by many is as to what is meant by conciliation and mediation, whether they are the same and, if not, whether there are any differences? Conciliation and Mediation Whether, in common parlance, there is some difference between conciliation and mediation or not, it is however clear that two statutes by Parliament treat them as different. (a) In the year 1996, the Arbitration and Conciliation Act, 1996 was passed and sec. 30 of that Act, which is in Part I, provides that an arbitral tribunal may try to have the dispute settled by use of ‘mediation’ or ‘conciliation’. Sub-section (1) of sec. 30 permits the arbitral tribunal to “use mediation, conciliation or other procedures”, for the purpose of reaching settlement. (b) The Civil Procedure Code (Amendment) Act, 1999 which introduced sec. 89, too speaks of ‘conciliation’ and ‘mediation’ as different concepts. Order 10 Rules 1A, 1B, 1C of the Code also go along with sec. 89. Thus our Parliament has made a clear distinction between conciliation and mediation. In Part III of the 1996 Act (sections 61 to 81) which deals with ‘Conciliation’ there is no definition of ‘conciliation’. Nor is there any definition of ‘conciliation’ or ‘mediation’ in sec. 89 of the Code of Civil Procedure, 1908 (as amended in 1999). Conciliation In order to understand what Parliament meant by ‘Conciliation’, we have necessarily 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