Conciliation and mediation are forms of Alternative Dispute Resolution. Although they have various similarities and are often used interchangeably, they are different approaches with their own uniqueness.
For other forms of Alternative Dispute Resolution such as Arbitration and Adjudication, have a look at Online and Offline Arbitration: What is the Difference? and What is Adjudication?.
What does conciliation mean?
Conciliation is a dispute resolution process that is based on creating a positive relationship between the disputing parties. This requires a conciliator, who is an impartial person that supports the parties by managing the negotiations and steering them on to a reasonable and adequate agreement.
It differs from arbitration in being a much less confrontational proceeding; it seeks to identify a right that has been violated and searches to find the optimal solution. Usually, conciliation is a preventive measure applied once a disagreement or misunderstanding comes up via a conciliator that works to stop a conflict from reaching a developed dispute. Moreover, the conciliator impartially helps the parties achieve an amicable settlement.
What is Mediation?
Mediation layes at the core of ADR.
In mediation, parties who are unable to resolve a dispute for themselves rely on an independent third person, or mediator, who will carefully listen to an outline of the dispute and then meet each party separately.
The purpose of the mediator is to encourage the parties to reach a reasonable agreement with the primary focus on the real interests of both parties, instead of what is considered to be a contractual or legal entitlement. Mediation affords parties a high degree of control over the process and the agreement.
In addition, it allows the customization of the process and hence the scope of the discussions agenda can be extended beyond the dispute into communications and relationship issues. The International Chamber of Commerce (ICC), recommends mediation in the absence of a specified settlement technique. Additional relevant info about mediation here.
There are several types of mediation. For example, Menkel-Meadow (1993) derives eight models of mediation, and Boulle (2005) recognizes four models. Alxander (2008) described a meta-model consisting of six models; settlement mediation, facilitative mediation, transformative mediation, expert advisory mediation, wise counsel mediation, and tradition-based mediation. While the exact number of mediation models varies in the literature, scholars agree that there are two basic forms from which various types stem. These are facilitative and evaluative mediation forms.
Basic Forms of Mediation
Riskin describes facilitative mediation as that carried out by a facilitative mediator who understands both parties and has good knowledge of the subject (good technical experience) and is often appointed for that reason, particularly in the complex construction field;
The mediator who facilitates assumes that the parties are intelligent, able to work with their counterparts, and capable of understanding their situations better than the mediator and, perhaps, better than their lawyers. Accordingly, the parties can develop better solutions than any the mediator might create. Thus, the facilitative mediator assumes that his principal mission is to clarify and to enhance communication between the parties in order to help them decide what to do (Riskin, 1996, p.24).
On the other hand, evaluative mediation is often described as mediation that requires the mediator to undertake tasks such as fact-finding, judging, and allocating the burden of proof. The mediator is also required to take relevant laws and customs into consideration (Brown, 2004).
Furthermore, hybrid mediation models such as med-arb are also emerging as the preferred ADR method. Med-arb is essentially a combination of mediation and arbitration as a hybrid mechanism of dispute resolution. As a first attempt, the disputing parties try to settle the dispute by mediation. In the case mediation fails in finalizing a settlement, the agreement allows for the mediator to be assigned as an arbitrator and advance to resolve the dispute via arbitration (Ng & Banaitis, 2017).
What is the difference between mediation and conciliation?
The main differences between Mediation and Conciliation are tabulated below
|After a dispute arises.
|Preventive measure. (Before a dispute arises)
|Customizable with party High control.
|Third-party guides the negotiation and settlement process.
|Authority of third-party/facilitator
|None – Guidance only
|Focus on the real interests of both parties with less focus on legalities.
|Less adversarial – seeks to resolve issues amicably.
A similar and more extensive study on the difference between mediation and arbitration can be read in What are the differences between arbitration and mediation? and in the arbitration ane mediation hybrid “Mid-Arb” in Can arbitrators mediate? All you need to know about Mid-Arb, Arbitration and Mediation