Conciliation is a process through which two or more parties may explore and reach a negotiated solution to their conflict with the help of a third neutral and disinterested party, the conciliator.
The conciliation process finds its most solid foundation and eventual success on the will of the parties to engage in a meaningful dialogue regardless of the depth of their differences. Anyone wishing to explore a negotiated solution to a problem -whatever its nature-should do so with an open mind, for conciliation intends to explore common grounds upon which the parties may build an agreement acceptable to all involved.
Because of his impartiality, independence, and professional experience, the conciliator can help the parties understand the motives and needs of all involved. However, the conciliation process does not seek a solution at any cost, nor may a conciliator impose a solution upon the parties.
Much debate has focused on the distinction between conciliation and mediation, and no universal agreement has emerged.”Conciliation” sometimes serves as an umbrella-term that covers all mediation and facilitative and advisory dispute-resolution processes. Neither process determines an outcome and both share many similarities. For example, both processes involve a neutral third-party who has no enforcing powers. One significant difference between conciliation and mediation lies in the fact that conciliators possess expert knowledge of the domain in which they conciliate. The conciliator can make suggestions for settlement terms and can give advice on the subject-matter. Conciliators may also use their role to actively encourage the parties to come to a resolution. Mediation works purely facilitative, the practitioner has no advisory role. Instead, a mediator seeks to help parties to develop a shared understanding of the conflict and to work toward building a practical and lasting resolution.
Mediation is a voluntary and confidential way to resolve disputes without giving the decision-making power to someone else (like a judge). It involves sitting down with the other side in the dispute and a third-party who is neutral and impartial (the mediator). The mediator helps the parties identify the important issues in the dispute and decide how they can resolve it themselves. The mediator doesn’t tell them what to do, or make a judgment about who’s right and who’s wrong. Control over the outcome of the case stays with the parties.
If resolution is attained, the agreement is formalized in a written resolution agreement, which is a binding agreement. All communications within the context of mediation are privileged and may not become the subject of a complaint. Parties are asked to keep confidential all discussions that take place during mediation.
If you’ve given up on negotiating a settlement of your dispute directly with the other party, mediation may be the best way to solve it. Compared to a lawsuit, mediation is quick, private, fair, and inexpensive.
Arbitration, a form of alternative dispute resolution (ADR), is a legal technique for the resolution of disputes outside the courts, where the parties to a dispute refer it to one or more persons (the “arbitrators”, “arbiters” or “arbitral tribunal”), by whose decision (the “award”) they agree to be bound. It is a settlement technique in which a third party reviews the case and imposes a decision that is legally binding for both sides.
In India prior to 1996 Arbitrations were governed by Arbitration and Conciliation Act of 1940. New Act was passed in 1996 which brought changes in the said law in India.
One of the important changes brought in by the Arbitration and Conciliation Act, 1996, (hereinafter referred to as the 1996 Act or Act of 1996) in the field of law concerning arbitration, compared to the analogous provisions in the earlier enactment, Arbitration Act of 1940 (herein after referred to as the 1940 Act or Act of 1940) is relating to `enforcement of awards’.
An arbitration award (or arbitral award) is a determination on the merits by an arbitration tribunal in arbitration, and is analogous to a judgment in a court of law. It is referred to as an ‘award’ even where the entire claimant’s claims fail (and thus no money needs to be paid by either party), or the award is of a non-monetary nature. Although arbitration awards are characteristically an award of damage against a party, tribunals usually have a range of remedies that can form a part of the award. The tribunal may order the payment of a sum of money (conventional damages) the tribunal may make a “declaration” as to any matter to be determined in the proceedings in most jurisdictions, the tribunal has the same power as a court to: order a party to do or refrain from doing something (“injunctive relief”) to order specific performance of a contract to order the rectification, setting aside or cancellation of a deed or other document.
The legal requirements relating to the making of awards vary from country to country and, in some cases, according to the terms of the arbitration agreement. Although in most countries, awards can be oral, this is relatively uncommon and they are usually delivered in writing.
In contrast to mediation, a party cannot unilaterally withdraw from arbitration.