The Difference Between Mediation and Conciliation

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People involved in personal or business disputes often would rather settle issues without involving court proceedings or litigation, which could be a drain on resources, time, and money. Alternative dispute resolution (ADR) methods offer just that, such as negotiation, mediation, and arbitration.

Parties who opt for ADR would have greater control and flexibility over how their conflicts are settled. Basically, ADR involves confidential hearings between parties where they can have open discussions that should end in a settlement on which they all agree. Negotiation is just that – the parties discuss their issues to reach a resolution. Mediation takes it one step further in that a neutral third party, a mediator, facilitates discussions, helping navigate to a settlement, but the mediator has no control over proceedings. Arbitration is closer in structure and outcome to litigation. Still, without the same cost or time constraints, in that a neutral third party, an arbitrator, considers evidence and arguments to render a decision, or arbitral award, to which the parties can be legally bound.

Many commercial contracts rely on mediation and/or arbitration clauses to settle disputes, but some jurisdictions allow a fourth ADR method, conciliation. Conciliation, under these circumstances, offers the flexibility of mediation while providing a structure more similar to arbitration, creating what some might consider a “middle ground” between the two other ADR types.

Here, we will discuss mediation and conciliation specifically.

What is mediation?

Mediation is one of the more informal ADR options. Parties determine the basic procedures and scheduling and, ultimately, have complete control over the process and outcome. This includes appointing a third-party mediator. This mediator is usually a trained ADR professional who can help the parties reach an agreement through their discussions and issues. Oftentimes, the mediator is also a subject matter expert who would have a deeper understanding of the issues in question, unlike a judge who is usually an expert in law matters.

The main benefits of mediation are informality and participant control, which extend to other benefits. With such control, participants can schedule hearings to their convenience rather than being held to a court calendar. As a result, mediation requires less expense in terms of court and advisor fees. Furthermore, because of this informality, greater control, and confidentiality, parties are more likely to maintain a good working relationship after mediation as it is a non-confrontational dispute resolution method, unlike how litigation and, in some cases, arbitration can be.

What is conciliation?

Conciliation is another ADR method that is available in certain jurisdictions. In this process, a neutral third party, here, a conciliator, is appointed to do more than facilitate discussions between parties in conflict. The conciliator can suggest potential solutions for the parties to consider, offering guidance to help reach a mutually beneficial settlement. Then, the conciliator is usually the one who makes the final determination and develops the settlement agreement.

As with mediation, conciliation offers the benefits of flexibility and control, which lead to a similar time and cost savings. Conciliation is also less adversarial than litigation or arbitration, allowing opportunities to maintain or salvage business relationships. Furthermore, like other ADR options, conciliation provides confidentiality and privacy, unlike court proceedings which often result in the public record.

How is mediation different from conciliation?

As can be seen from the previous sections, mediation and conciliation have many of the same processes and benefits. The main difference between mediation and conciliation is that the neutral third party in one (mediator) has less direct participation in proceedings than the other (conciliator). Unlike mediators, conciliators play a more active role in discussions, not just facilitating but also participating and offering possible ways to resolve issues.

Also, depending on the jurisdictions, the questions of enforceability, tribunals (more than one conciliator) and confidentiality may be governed by specific laws, such as India’s Arbitration and Conciliation Act of 1996 (amended 2021).

Can conciliation be applied to all jurisdictions?

While negotiation, mediation, and arbitration are well-known ADR methods, conciliation is not as common. In some countries, such as Thailand and the Philippines, conciliation is not a recognized ADR option. In fact, some jurisdictions, like Thailand, use the terms “mediation” and “conciliation” interchangeably. Countries that recognize and, in some cases, codified conciliation as an ADR option include the UK, Singapore, and India.

THAC can assist in all forms of ADR

Thailand may consider conciliation and mediation as the same process; however, an internationally recognized dispute resolution center like the Thailand Arbitration Center (THAC) has experts and resources knowledgeable on the various ADR options and how they are applicable across jurisdictions.

THAC offers complete ADR services, including access to experienced negotiators, arbitrators, and mediators who are also experts in a wide range of topics. With a central location near public transport and more roadways and state-of-the-art facilities, THAC accommodates local and cross-border proceedings with in-person or remote hearings. In addition, THAC’s affordable services extend to full administrative support and assistance with pre-dispute consultations.

For further information about conciliation, mediation, or any other ADR option, please feel free to contact us at [email protected] or +66 (0)2018 1615. THAC is looking forward to helping you.

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The Difference Between Mediation and Conciliation