Informal Settlement of Disputes: Conciliation and Mediation

In one line

Most grievances against the administration are settled without any adjudication at all, by somebody helping the parties reach an agreement, and that is what conciliation and mediation are.

In the words a student can write in an exam: conciliation and mediation are informal methods of settling disputes in which a neutral third person assists the parties to reach a settlement, without imposing a decision on them. They differ from adjudication, whether by a court or by a tribunal, in that the outcome is an agreement of the parties rather than a determination binding on them, and they differ from arbitration in that the neutral has no power to decide. In the administrative field they are important because the overwhelming majority of grievances against public authorities never reach a court, and because they belong to the green light approach of preventing and resolving disputes rather than reviewing decisions after the event.

Where this fits in the subject

This is the green light half of the syllabus. Everything in Modules II and III is about what a court does after an administrative decision has gone wrong. This chapter and the next are about the machinery that resolves the grievance without any court at all: [Red Light and Green Light Theories].

The scale is worth stating. For every citizen who files a writ petition about a licence, a pension, a ration card or a water connection, there are thousands who complain to the department, to a grievance cell, to a Lokayukta or to a consumer forum, or who settle. A subject that describes only the writ jurisdiction has described the exception.

The vocabulary

The line between conciliation and mediation is not sharp, and Indian statutes have used the words interchangeably at times. The traditional distinction is that a conciliator may put forward proposals for settlement while a mediator confines himself to helping the parties find their own; but the Mediation Act 2023 defines mediation broadly enough to include processes described as conciliation, so an answer should state the classical distinction and note that the statute has largely merged them.

The Indian statutory framework

Section 89 of the Code of Civil Procedure 1908 requires a court, where it appears that there exist elements of a settlement acceptable to the parties, to formulate the terms and refer the dispute to arbitration, conciliation, judicial settlement including settlement through a Lok Adalat, or mediation. It is the provision that brought court referred mediation into ordinary civil litigation.