One of the reasons to include Conciliation in the Arbitration & Conciliation Act, 1996 (the 1996 Act), was to provide a readily available mechanism for amicable resolution of a variety of disputes. One key benefit of the relevant provisions, as laid out in Part III of the 1996 Act, (other than the Enforcement provisions) is that the Neutral – the Conciliator – c give suggestions for a possible settlement.

Often, the parties are so caught up in the exercise of ascertaining who is right, that they are unable to figure out what is right. Here, the neutral’s nudge in an appropriate direction helps them get on the right track to quickly come to a mutually beneficial outcome. Mediators too sometimesended up giving suggestions. This latter enthusiasm as cautioned against by the Hon’ble Supreme Court in the case of Afcon v. Cherian by distinguishing the role of neutrals in the twin mechanisms of conciliation & mediation and clarifying that it is only the conciliator who can give suggestions and not the mediator.

Now, under the new law on mediation – the Mediation Act, 2023 (the 2023 Act) – the aforementioned provisions for Conciliation will stand subsumed in this Act, when implemented. In laymen’s terms, the Conciliation provisions will then no more be available to the disputants and they will have to fend for themselves in finding their own solutions, as the mediator would not be forthcoming with any likely, workable ideas.

Thus the title of this write-up, as the Act takes away a very vital organ of the collaborative process of Conciliation, by clubbing it with the twin process of Mediation.

Yes, one could still provide a back-door entry for arming mediators with the option of offering suggestions under certain circumstances, by making necessary provisions in the Rules to be drafted by the Mediation Council. However, unless drafted in a particular, precise manner, such provisions may get challenged in a court of law. Furthermore, they could even drag a mediator in some controversy and land him in front of an Ethics Committee of the Mediation Council (if formed).