Mediation: What It Is, and How It Differs from Conciliation and Arbitration

In one line

Mediation is a neutral third person helping two parties reach their own settlement, and in India it is the hardest of the ADR words to pin down because our statutes have used it and conciliation almost interchangeably.

In exam wording: mediation is a voluntary process in which a neutral third person, the mediator, assists the parties to a dispute to reach an amicable settlement, without any power to adjudicate or to impose an outcome.

The definition, and where it now comes from

Until 2023 no Indian statute defined mediation. Section 3(h) of the Mediation Act 2023 now does, describing mediation as a process, whether referred to by expressions such as mediation, pre-litigation mediation, online mediation, community mediation, conciliation or an expression of similar import, whereby parties seek an amicable resolution of their dispute with the assistance of a third person, the mediator, who does not have the authority to impose a settlement upon the parties.

Read the words in the middle: the definition expressly includes conciliation within mediation. Parliament, drafting in 2023, treated the two as the same family rather than trying to separate them. That is the best guide a student has, and it is the safest thing to say in an answer.

But section 3 of the Mediation Act is itself in force while the operative sections around it are not, which is chapter 620's subject. Use the definition; do not assume the Act's machinery is running.

The classical distinction, and how far it holds in India

The textbook distinction is between two models of what a neutral does.

Facilitative mediation. The mediator manages the conversation, tests each side's case privately, and helps the parties construct their own solution. He does not offer a view on the merits and does not propose terms.

Evaluative mediation, and conciliation. The neutral goes further: he assesses the strengths and weaknesses, tells the parties what he thinks, and may put forward terms.

Indian statute reflects that split in one place, and it is the sentence to cite: section 67(4) of the Arbitration and Conciliation Act 1996 provides that the conciliator may, at any stage, make proposals for a settlement, and that those proposals need not be in writing and need not be accompanied by reasons. Chapter 560 works it through. A purely facilitative mediator would not do that.

Do not overstate it. Three things cut against a clean division in India:

• Section 30 of the 1996 Act, chapter 370, lets a tribunal use "mediation, conciliation or other procedures", treating them as alternatives of the same kind.
• Section 89 of the Code of Civil Procedure lists both as separate options, and, as chapter 600 shows, the Supreme Court found its definitions of two of them to have been interchanged by a drafting error.
• The Mediation Act 2023 definition folds conciliation into mediation outright.