Mediation & Conciliation: A Comparative Study of ADR Mechanisms


Mediation and conciliation are key components of Alternative Dispute Resolution (ADR), providing mechanisms for resolving disputes outside the traditional court system. These processes emphasise voluntary participation, confidentiality, and the involvement of a neutral third party to facilitate dialogue and negotiation. While both mediation and conciliation share similarities, they also exhibit distinct differences in practice and methodology.


What is Mediation?

Mediation is a structured process wherein disputing parties seek to resolve their conflicts with the assistance of a neutral mediator. The mediator’s role is to facilitate communication, help identify issues, and explore potential solutions, without imposing a binding decision or judgment. The key characteristics of mediation include:

  1. Voluntary Participation: Parties engage in mediation willingly and can withdraw at any time.
  2. Confidentiality: Discussions and offers made during mediation cannot be used in subsequent legal proceedings.
  3. Non-Binding Process: The mediator does not impose a decision; the parties themselves decide the outcome.
  4. Facilitative Role: The mediator helps parties communicate and negotiate but does not provide legal advice or make decisions.
  5. Time-Bound and Structured: Unlike negotiation, mediation typically follows a structured timeline to encourage timely resolution.

The mediation process begins with the mediator opening a dialogue, inviting parties to present their perspectives and desired outcomes. The mediator assists in identifying practical solutions and encourages flexibility and compromise. The goal is to create a conducive environment for parties to settle their disputes amicably.


What is Conciliation?

Conciliation, like mediation, involves a neutral third party who assists disputing parties in reaching a settlement. However, conciliation is distinct in several ways:

    1. Active Participation: The conciliator plays a more proactive role in suggesting solutions and guiding the negotiation process.
    2. Objective Prioritization: The conciliator helps parties prioritise their objectives and identifies areas of flexibility and concession.
    3. No Binding Decision: Similar to mediation, conciliation does not result in a binding judgment or award.
    4. Confidentiality and Voluntary Nature: Both processes share these attributes, ensuring private and voluntary participation.

The conciliator engages more directly with the parties, often moving between them to facilitate discussion and propose compromises. This approach is more interventionist compared to the facilitative role of a Mediator.


Historical Context and Legal Framework in India:

The legal framework for arbitration and conciliation in India is encapsulated in the Arbitration and Conciliation Act, 1996, which consolidated and modernised previous laws. The Act also integrated international protocols and conventions, reflecting India’s commitment to a comprehensive ADR mechanism.

Historically, mediation received legislative recognition under the Industrial Disputes Act, 1947, which empowered conciliators to mediate industrial disputes. Arbitration as a legal concept dates back to the Civil Procedure Code of 1908, with significant developments in the 1940 Arbitration Act and subsequent amendments. The introduction of Section 89 in the Code of Civil Procedure, 1908, through the CPC Amendment Act of 1999, further cemented mediation and conciliation within the Indian judicial system.


Sources of Arbitration & Conciliation Law:

Arbitration and conciliation laws are influenced by various national and international instruments, including:

    1. National Laws: These include specific arbitration acts and procedural laws governing ADR.
    2. International Conventions: Key conventions include the 1958 New York Convention on Recognition and Enforcement of Foreign Arbitral Awards, the Geneva Protocol of 1923, and the Geneva Convention of 1927.
    3. UNCITRAL Model Law and Rules: These provide a framework for arbitration and conciliation procedures globally.

Typology of Mediation:

Mediation in India can be categorised into:

    1. Court-Referred Mediation: Cases are referred to mediation by courts under Section 89 of the Code of Civil Procedure, 1908.
    2. Private Mediation: Qualified mediators offer services privately, often on a fee-for-service basis, for both pre-litigation and court-referred disputes.

Advantages of Mediation:

Mediation offers several benefits:

    1. Control and Participation: Parties have control over the process and outcome.
    2. Speed and Cost-Effectiveness: Mediation is generally quicker and less expensive than litigation.
    3. Confidentiality: Ensures that discussions remain private.
    4. Flexibility: The process can be tailored to the needs of the parties.
    5. Relationship Preservation: Facilitates better communication and can improve or restore relationships.
    6. Creative Solutions: Parties can agree on innovative and non-conventional remedies.

Mediation Vs. Conciliation:

Common Features:

    • Non-adjudicatory Process: Both mediation and conciliation are non-judicial methods of dispute resolution.
    • Voluntary Process: Participation in both processes is voluntary.
    • Neutral Third Party: A mediator or conciliator acts as an impartial facilitator.
    • Legal Assistance Available: Parties can seek the services of lawyers.
    • Party-Cantered Negotiation: Negotiations are focused on the parties’ interests and needs.
    • Not Appealable: Decisions or agreements reached are not subject to appeal.
    • Focus on Present and Future: The emphasis is on resolving current issues and future relations.
    • Structured Process: Both processes follow a structured approach with distinct stages.
    • Active Participation: Parties are directly involved in the process.
    • Confidentiality: Confidentiality is a crucial element in both mediation and Conciliation.


Mediation-Specific Features:

    • Facilitative Role: The mediator primarily facilitates communication and negotiation without imposing solutions.
    • Consent for Referral: Parties must consent to refer the dispute to a Mediator.
    • Legal Basis for Agreement: The referring court uses principles of Order XXIII Rule 3 CPC to pass a decree/order based on the mediation agreement.


Conciliation-Specific Features:

    • Active Role: The conciliator takes a more active role in suggesting and guiding towards solutions.
    • Referral Without Consent: Parties’ consent is not necessary for referring a dispute to conciliation.
    • Enforceability of Agreement: The Conciliation Agreement is enforceable as a court decree under Section 74 of the Arbitration & Conciliation Act, 1996.

The practice of Mediation & Conciliation in India:

India has seen the establishment of Court-Annexed Mediation and Conciliation Centres across various courts. These centres integrate mediation services within the judicial system, ensuring judges, lawyers, and litigants collaboratively work towards negotiated settlements. This model promotes public acceptance and integrates ADR within the trusted framework of the judiciary.



Mediation and conciliation play vital roles in addressing the backlog of cases in Indian courts and offering efficient, cost-effective, and amicable solutions to disputes. These ADR mechanisms also provide lawyers with new career opportunities, promoting a diversified legal profession. However, measures must be taken to ensure timely resolution and prevent delays in the ADR processes. By embracing mediation and conciliation, the Indian legal system can enhance its capacity to deliver justice more effectively and equitably.

Disclaimer: This article is for informational purposes only and does not constitute legal advice. The content may not reflect the most current legal developments and is not guaranteed to be accurate, complete, or up-to-date. Readers should consult a qualified legal professional before taking any action based on the information provided. The authors and publishers disclaim any liability for any loss or damage incurred as a result of reliance on this article. This article does not create an attorney-client relationship.

To Top

Disclaimer & Confirmation

As per the rules of the Bar Council of India, we are not permitted to solicit work and advertise. By clicking on “I Agree” below, the user acknowledges the following:
The user wishes to gain more information about us for his/her own information and use;
There has been no advertisement, solicitation, invitation or inducement of any sort whatsoever from us or any of our members to solicit any work through this website;
The information about us is provided to the user only on his/her specific request and any information obtained or materials downloaded from this website is completely at the user’s volition and any transmission, receipt or use of this site would not create any lawyer-client relationship.
The information provided herein should not be interpreted as legal advice, for which the user must make independent inquiries.
Whilst every effort has been taken to ensure the accuracy of the contents of this website, JurAce Legal LLP, disclaims all liability arising from reliance placed by the user or any other third party on the information contained or provided under this website.
All disputes, if any, relating to this website are subject to the exclusive jurisdiction of courts in New Delhi, India only.