Mediation requires the agreement of all the parties concerned in order to begin the process and is strictly confidential. Unlike mediation, conciliation may be mandatory and is not of a confidential nature. Consequently, the failure of a conciliation does not, in principle, act as barrier to the possibility of the parties to subsequently use information and documents brought to their attention during the conciliation procedure.
The fundamental difference between mediation and conciliation lies in the fact that the former is not part of the function of judges, while « the role of conciliator is inherent in the function of a judge » (P.-P. Renson, La médiation civile et commerciale : comment éviter les aléas, le coût et la durée d’un procès, Louvain-la-Neuve, Anthemis, 2010, 132 p., translated from French).
The role of the neutral third party (conciliator) is to structure, coordinate the discussions between the parties in order to restore a sincere communication between them that should enable them to find a balanced solution which best meets their respective interests.
This agreement is most often translated into a conciliation report signed by the parties and the conciliator.