A very common question I am asked by those new to dispute resolution processes is what the difference between a mediator and conciliator is, and which process is suited to their needs. In this article, I step out some of the key differences between these two processes.
It is important to note though, that depending on the context, these words can be used interchangeably and sometimes, inconsistently. In essence, mediation and conciliation are both dispute resolution processes used to resolve conflicts outside of the traditional court system.
The two key similarities of both processes are:
they are designed to arrive at an agreed outcome to a dispute
they require the involvement of an independent, impartial third party to guide the discussion.
While many conciliators and mediators have had the same training and can adapt their process to meet the needs of the parties, it is important to note the following key differences to be able to identify whether a mediation or conciliation is best for you.
Key Difference 1: Role of the Third Party
Mediation: In mediation, a neutral third party, known as the mediator, facilitates the communication and negotiation between the parties in conflict. The mediator helps them identify their interests, explore options, and work towards a mutually acceptable resolution. However, the mediator does not have the authority to make decisions or impose a solution on the parties, nor does a mediator provide advice or suggest options during the dispute. The mediator does not make recommendations following the conclusion of a mediation.
Conciliation: Like mediation, conciliation also involves a neutral third party, known as the conciliator. The conciliator's role is more active compared to a mediator. They may provide suggestions, advice, and even make recommendations to assist the parties in reaching an agreement. In some cases, the conciliator may have a more directive role. At the end of the process, a Conciliator may issue directions or provide a report to progress the dispute. A Conciliator is generally not neutral to the outcome, they are a system representative. This means that a Conciliator may push parties towards an agreement that complies with an overarching law, policy or rule.
Key Difference 2: Level of Involvement and Control
Mediation: Mediation is typically a more informal and flexible process. The parties have more control over the outcome and are responsible for generating their own solutions. The mediator facilitates the process but does not make decisions for them. There are no specific time limits for mediation and these processes tend to take as long as the parties need.
Conciliation: Conciliation can be more structured, and the conciliator may take a more active role in guiding the process. They may offer specific suggestions or propose potential solutions. In some cases, the conciliator may even draft a formal settlement agreement for the parties to consider. Conciliations tend to be subject to strict timeframes (particularly where they are offered by a third party organisation such as a government agency, tribunal or commission)
Key Difference 3: Use of Legal Principles
Mediation: Mediation focuses on the interests and needs of the parties involved. It is not necessarily bound by legal principles, and the mediator does not provide legal advice.
Conciliation: While conciliation also considers the parties' interests, it may involve a more explicit consideration of legal principles and rights. The conciliator may offer legal information or advice, particularly in situations where legal expertise is relevant to the dispute. Conciliators work for many Commissions. Courts, Tribunals and Authorities across Australia and New Zealand. Part of their role requires them to ensure parties to a dispute understand the relevant legal provisions and act in accordance with the,
Key Difference 4: Nature of the Process
Mediation: Mediation is often seen as a collaborative and voluntary process. The parties must be willing to participate and work towards a resolution.
Conciliation: Conciliation can sometimes be a more structured and formal process, and it may be used in situations where there is a power imbalance between the parties or where more guidance is needed.
Key Difference 5: Applicability and Context
Mediation: Mediation is commonly used in a wide range of disputes, including family conflicts, workplace disputes, commercial disagreements, and more. It is suitable where both parties are approaching the conflict in good faith with a view to resolving the dispute.
Conciliation: Conciliation is often used in situations where there is a need for a more directive approach, such as in labor disputes, international diplomacy, or when there is a significant power imbalance between the parties. Conciliation is often used by regulatory and oversight bodies to ensure complaints and disputes are resolved in accordance with the law. It might be a required stage of the process. These organisations may also take investigative and enforcement action if they identify noncompliance with legal responsibilities.
It's worth noting that the specific practices and terminology may vary by jurisdiction, and in some regions, the terms "mediation" and "conciliation" may be used interchangeably or have different meanings. It's important to understand the specific process being used in a given context.
Shiv Martin provides both mediation and conciliation services and training for other mediators and conciliators. Please get in touch if you would like to learn more.