Conciliation Vs. Mediation: The Conundrum Continues

Abstract

The sense in which the terms, ‘conciliation’ and ‘mediation’, is used varies from jurisdiction to jurisdiction. Some jurisdictions ascribe to the words, meanings which makes both of them synonymous. Other jurisdictions ascribe to the words, meanings which make the two of them refer to distinct processes. In India, however, there is no consistent usage of these terms. Some statutes seem to use these terms, in a manner which suggests that they are synonyms. Other statutes seem to use these terms, in a manner which suggests that they are not synonyms. Disturbingly, a survey of these statutes does not seem to reveal any rational basis on which to distinguish the processes of conciliation and mediation, in the event the two terms refer to different processes. This uncertainty has the potential to cause serious problems for the practitioners of these processes.

Introduction

Jurisdictions use the terms ‘conciliation’ and ‘mediation’ differently — some treat them as different process, others treat them as synonyms; both do so consistently. A survey of our statutes, however, seems to place Indian Law in a dubious third category — a jurisdiction which maintains no consistent distinction between the two terms, and is anyways confused about the distinction between the two.

The Separability Thesis

My first thesis is that conciliation’ and ‘mediation’ are not synonyms— they mean the different things. I call this the ‘separability thesis’. There are ample indicators that Indian Law seems to subscribe to this thesis.

A number of statutory provisions use ‘conciliation’ and ‘mediation’ concurrently:

• Section 30 of the Arbitration and Conciliation Act, 1996 (ACA) allows an arbitrator to use, ‘conciliation’ or ‘mediation’, to reach a settlement between the parties to an arbitral proceeding.
• Section 89 of the Code of Civil Procedure, 1908 (CPC) empowers the Court to refer cases for settlement by ADR. Two of the modes of ADR available for the Court to choose from are, ‘conciliation’ and ‘mediation’.
• Section 442 of the Companies Act, 2013 allows company law cases to be referred for a Mediation and Conciliation Panel for settlement. The procedure to be followed in the settlement proceedings is prescribed by the Companies (Mediation and Conciliation) Rules, 2016. The Rules consistently maintain a textual distinction between, ‘conciliator’ and ‘conciliation’ vis-a-vis ‘mediator’ and ‘mediation’.

It is a well-known rule of statutory interpretation, that the interpretation given to a statute must not render any expressions therein redundant. If ‘conciliation’ and ‘mediation’ are given the same meaning, it would reduce either of these words in these provisions to a mere surplusage. Hence, the correct interpretation would be to treat ‘conciliation’ and ‘mediation’ as meaning different things.

Another indicator is found in Section 89 of the CPC. Conciliation proceedings under Section 89 of the Code, are governed by the ACA. However, in case of mediation proceedings under Section 89 of the CPC, the Court is empowered to follow “such procedure as may be prescribed” and effect a compromise between the parties. This lends credence to the proposition that, the ‘conciliation’ referred to in the ACA is materially different from ‘mediation’.

Yet another indicator is found in Section 18 of the MSME Development Act, which empowers the MSE Facilitation Council to refer cases to ‘conciliation’. The conciliation proceedings so initiated are governed by the ACA and I have already argued that the ‘conciliation’ in the ACA seems to be materially different from ‘mediation’.

The Inseparability Thesis

My second thesis is that ‘conciliation’ and ‘mediation’ are synonyms—  they both mean the same thing. I call this the ‘inseparability thesis’. Again, there are ample indicators that Indian Law seems to subscribe to this thesis.

One indicator is that the words, ‘conciliation’ and ‘mediation’, have been used interchangeably across a number of statutes:

• Section 12A of the Commercial Courts Act, 2015 requires compulsory ‘mediation’ before a suit can be instituted in a commercial court in some cases. The Commercial Courts (Pre-Institution Mediation and Settlement) Rules, 2018 also uses the terminology ‘mediation’.
• Section 37 of the Consumer Protection Act, 2019 empowers the District Commission to refer complaints for settlement by ‘mediation’. Chapter V of the Act, which governs the mediation of complaints under the Act, consistently uses the terms ‘mediation’ and ‘mediator’ .
• Section 4 of the Industrial Disputes Act, 1947 empowers the Government to appoint “conciliation officers” to ‘mediate’ disputes. No prescribed procedure is spelt out.
• Section 34 of the Special Marriage Act, 1954, and Section 23 of the Hindu Marriage Act, 1995, both empower the Court to refer some cases for “reconciliation”. Again, no prescribed procedure is spelt out.

Many believe the Supreme Court decision in Afcons Infrastructure (2010) is an authority for the proposition that the words, ‘conciliation’ and ‘mediation’, are synonyms in Indian Law. However, this presupposition falls apart on a close reading of the decision. True, in Afcons Infrastructure, the Court cited the Black’s Law Dictionary to state that ‘conciliation’ and ‘mediation’ are synonyms in common contemporary usage. However, Afcons Infrastructure dealt only with two issues — the procedure to be followed under Section 89 of the CPC, and whether the consent of the parties is necessary for the Court to refer a case to arbitration under this Section. The aforesaid statement of the Court thus has no bearing on the outcome of the case, and therefore is not part of the ratio of the decision. In any case, the Court distinguished ‘conciliation’ and ‘mediation’ as separate processes in the context of Section 89 of the CPC. Thus, it is incorrect to interpret Afcons Infrastructure as an authority for the proposition that ‘conciliation’ and ‘mediation’ are necessarily synonyms in Indian Law.

Two Different Interpretations

On the one hand, conciliation and mediation can be understood to be conceptually different. In a paper, Justice M. Jagannadha Rao has drawn a conceptual distinction between conciliation and mediation. Mediation and conciliation, can be distinguished on the degree of intervention of the third-party facilitator (the conciliator or the mediator, respectively) in the process. Thus interpreted, a mediator plays a comparatively passive role but a conciliator plays a comparatively active role — the difference lies chiefly in the fact that, it is improper for the mediator to propose solutions suo motu but it is perfectly fine for a conciliator to do so.

On the other hand, conciliation and mediation can also be understood to be synonymous. The recently-adopted Singapore Convention on Mediation makes no distinction between mediation and conciliation — Article 2(3) of the Convention subscribes to an omnibus definition of mediation as, (i) a process (ii) whereby parties attempt to reach an amicable settlement (iii) aided by a third-party, or third-parties, lacking any authority to impose a solution upon them. This is regardless of the nomenclature of the process across jurisdictions. Hence, the Convention rejects the distinction between, conciliation and mediation, founded on the degree of intervention of the facilitator. Indeed, the Convention is unconcerned with the degree of intervention of the facilitator, so long as there is a facilitator who cannot impose a solution aiding the parties to voluntarily reach a settlement.

It hence appears that whether ‘conciliation’ and ‘mediation’ mean different things is a question of interpretation. If the words must mean different things, they must be interpreted narrowly with a distinction being drawn based upon the degree of intervention of the facilitator. If the words must be synonymous, they must be interpreted broadly with the degree of intervention of the facilitator being irrelevant — as has been done in the Singapore Convention. In a paper, Justice M. Jagannadha Rao noted— in modern times, ‘conciliation’ and ‘mediation’ are largely understood to be synonyms (the inseparability thesis); but certain jurisdictions continue to maintain a distinction between the meanings of the ‘conciliation’ and ‘mediation’ (the separability thesis).

Conclusion

In the contemporary usage of ‘conciliation’ and ‘mediation’, jurisdictions seem to fall into two binary categories — (i) those that subscribe to the separability thesis and (ii) those that subscribe to the inseparability thesis. Indian Law seems to fall into a dubious third category — a jurisdiction which appears to be confused.

In this context, Indian Law seems to suffer from two problems. First, it is unclear which thesis we subscribe to. There are statutes which subscribe to the separability thesis, and there are others which subscribe to the inseparability thesis. Second, in any case, the distinction between the two is garbled. Statutes which subscribe to the separability thesis do not adequately distinguish the two words.

These problems are a double whammy for practitioners of conciliation and mediation in India. First, since the law itself is often unclear on the distinction between the two, practitioners will be left a confused bunch in those circumstances. Second, they cannot disregard this distinction to escape confusion, since there is further confusion on whether the law contemplates a distinction between the two at all.

Hence, the need of the hour is a comprehensive review of conciliation and mediation provisions across Indian statutes. We must choose whether we want to maintain a distinction between the two; and if so, clearly and harmoniously define this distinction.