Key Differences Between Negotiation and Mediation

Key Differences Between Negotiation and Mediation
Now as we have already talked about the basic concepts of the two terms, we will discuss the differences
between negotiation and mediation:
1. Negotiation is a method to resolve industrial disputes through self-counseling and discussion

between the party members or the representatives of the parties, wherein a mutually acceptable
agreement is sought. On the contrary, mediation is a non-statutory measure of dispute settlement,
in which an independent third party is invited, to facilitate discussion, and suggest alternative
solutions, to bring agreement.
2. While negotiation does not involve the intervention of a neutral third party, in a mediation process,
the mediator is invited or consent is given by both the parties to discuss the issue with the
mediator, to bring about a suitable alternative solution.
3. When it comes to meetings, representatives of the parties to conflict meet to put forward their
interests, demands and talk about their rights. As against, in mediation, the mediator meets the
parties to conflict both jointly and separately, to discuss the point of issue and suggest solutions.
4. In the case of negotiation, interests are represented either by the party members themselves or by
the representatives appointed by them. Conversely, in the case of mediation, a mediator represents
the interests of the parties concerned.
5. In negotiation, parties discuss and decide a possible outcome, which is acceptable to both, whereas
in mediation, the mediator proposes a solution, to resolve the issues, but it is up to the parties, to
adopt the same or not.
6. When it comes to outcome, in a negotiation, the outcome is based on the relationship between the
parties. In contrast, in mediation, the outcome is controlled by the parties to the conflict.
Similarities
 Voluntary, informal and systematic process

 Non-adversarial method
 Mutually acceptable outcome sought
The concept of Mediation is ancient and deep rooted in India. From Lord Krishna mediating between
Kauravas and Pandavas in the Mahabharata, to family elders resolving domestic issues, to the resolution of
disputes at the community level through Panchayats, there exists a strong culture of mediation in India.
With the passage of time, there are certain statutes which provide for mediation as a mode of settlement
of disputes between the parties. Such statutes comprise of, but not limited to the following:
Conciliators appointed are assigned with the duty to mediate and promote settlement of industrial
disputes with detailed prescribed procedures for conciliation proceedings.
in 2002, an amendment to the Code of Civil Procedure, 1908 (CPC) was brought in. The insertion of Section
89 in the CPC is in itself a welcome step towards promoting mediation and other means of alternate dispute
resolution. Therefore, it provides for the reference of the cases pending before the courts to the aforesaid
modes of dispute resolution.
In addition, Order XXXIIA of the CPC recommends mediation for familial/personal relationships, as the
ordinary judicial procedure is not ideally suited to the sensitive area of personal relationships. Though
many courts in India now have mediation centres, there is no accurate data available to show that this
provision has been utilised successfully.
1. Legal Services Authorities at the centre, state and taluka level are statutory authorities established
by the Legal Services Authorities Act, 1987 with the object to provide free and competent legal service to
the weaker services of the society and to ensure that justice is not denied to any citizen on account of
economic or any other disability
2. Even Section 442 of the Companies Act, 2013, read with the Companies (Mediation and
Conciliation) Rules, 2016, provides for referral of disputes to mediation by the National Company Law
Tribunal and Appellate Tribunal.
Salem Bar Association v. Union of India (2003) 1 SCC 49
In this matter, Writ Petitions were filed challenging the Amendments made to the Code of Civil Procedure
by way of Amendment 46 of 1999 and Amendment 22 of 2002. Amongst other amendments, the attention
of the Hon'ble Supreme Court was drawn to Section 89 of the Code of Civil Procedure.
The Hon'ble Supreme Court observed that the provision of Section 89 of the Code of Civil Procedure has
been inserted to ensure that all the cases which are filed in the courts need not necessarily be decided by
the courts. The Hon'ble Supreme Court opined the need to promote Alternate Dispute Resolution. It
therefore, considered Section 89 to be a welcome step. It was therefore suggested by the Hon'ble Supreme
Court, that a Committee be constituted so as to ensure that the amendments made to the Code of Civil
Procedure become effective and result in quicker dispensation of justice.
Finally, Negotiation and mediation are less expensive and less time consuming than a traditional Court
proceeding. TO sum up, we can say that the parties in conflict can choose any ADR method to resolve their
dispute, without going to court. In both the two methods discussed above, the parties can control the
outcome, considering their interest and preferences.

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Key Differences Between Negotiation and Mediation

1. Negotiation is a method to resolve industrial disputes through self-counseling and discussion

 Voluntary, informal and systematic process

Salem Bar Association v. Union of India (2003) 1 SCC 49

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