| Arbitration |
Conciliation |
Mediation |
Arbitration is like litigation
which is outside the court and
which results in an award like
an order |
A conciliation is a form of
arbitration but it is less formal
in nature as compared to
arbitration. It is the process of
providing a harmonious
resolution of disputes between
the parties. |
Mediation is when a neutral
third party aims to assist the
parties in arriving at a mutually
agreeable solution |
it is binding on parties whether
they agree with it or not. |
There is no right to enforce the
decisions of the parties. |
there is no binding decision
without both parties agreeing to
one. |
An arbitrator has the power
to enforce his decision. |
A conciliator does not have
the power to enforce his
decision. |
The decision made by the
mediator is not enforceable
like an arbitral award. |
| Prior agreement is required |
Prior agreement is not required
|
Prior agreement is not required
|
Example:
Damages in case of breach
of contract, matters of the
right to the office, time barred
claims etc. |
. Example:
Resolving disputes between
contractors and
subcontractors etc. |
Example:
Commercial transactions in
patents, trademark licenses,
Joint ventures and R & D
Contracts, music and film
contracts etc |
The result is the award given.
and it is appleable |
Result is agreement between
the parties and not
appleable. |
The result is Settlement
agreement and not appleable |
No communication between
the parties |
Communication is permitted |
Optimal communication is permitted
|
| Consent of party is essential |
Consent of party is essential |
Consent of party is not
required to quote the case for
mediation |
Arbitration and conciliation
act 1996. |
Section 74 of arbitration and
conciliation act 1996 |
Order XXIII , Rule 3, of CPC,
for passing decree/order |
An arbitrator plays the role of
a neutral person, who makes
decisions on a dispute based
on evidence presented by the
parties |
The conciliator is more active
than the mediator who also
intervenes and act as an
evaluator. He proposes a
solution |
The mediator only facilitates
parties themselves find a
solution. |
Does arbitration involve mediation?
The arbitration and mediation are two different form of alternative dispute reform. Mediation is
discussion oriented whereas arbitration is litigation oriented. Arbitration is a good way to settle the dispute if mediation does not work effectively or the parties cannot bring themselves to work out a solution that benefits both of them. Thus, both are an essential step of resolving business disputes.
Arbitration should follow mediation. It is possible to combine mediation with arbitration. In such a case, the dispute is submitted first to mediation under the WIPO Mediation Rules. Then, if a settlement is not reached within a defined period of time (it is recommended that the parties provide for either 60 or 90 days), or if a party refuses to participate or to continue to participate in the mediation, the dispute is referred for a binding decision through arbitration under the WIPO Arbitration Rules (or, if the parties so agree, through expedited arbitration). The advantage of the combined procedure is the incentive that it offers for a good faith commitment by both parties to the mediation process, since the consequence of a failure to reach an agreed settlement will be more tangibly measurable in terms of the financial and management commitment that would need to be incurred in the subsequent arbitration procedure.
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