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A Short Note on Conciliation
With an increasing awareness on the various non-traditional methods of conflict resolution, Conciliation, Arbitration, Mediation and Negotiation have become popular processes of Alternate Dispute Resolution (ADR). In ADR there is a third-party present who is neutral and facilitates a healthy discussion between the parties, thus enabling them to come to a mutually agreeable settlement. In mediation the neutral party, or mediator, is completely neutral and merely facilitates the discussion but in arbitration, the arbitrator is equipped with a decision-making power and his decision is binding on the parties and enforceable in court[1]. In a negotiation, however, the parties interact between themselves, without a third-party, to come to an agreement.
Conciliation is different to the abovementioned forms of Alternate Dispute Resolution in many ways. While the process is similar and objective is to maintain a healthy relationship between the parties while encouraging them to discuss and arrive at a satisfactory common agreement, the role of the conciliator is different to the role played by a mediator or an arbitrator. A mediator facilitates discussion, does not believe in traditional notions of ‘fault’ and always maintains impartiality. The conciliator, however, advices the parties and the addresses the issues directly, providing solutions to the parties by drawing up a settlement agreement[2]. Even though the conciliator is neutral, he is seen as an authority figure who has the responsibility of coming up with the best solutions for the parties who go to him for guidance[3]. Unlike a mediator who suggests creative solutions for parties to discuss and work upon, a conciliator draws up proposals which the parties accept or reject. A mediator follows certain procedure while leaving the outcome to the parties, but a conciliator may have an unstructured process more like a negotiation.
Unlike arbitration, which is applicable to existing and future disputes, conciliation is only an option to resolve existing and ongoing conflicts between parties who usually want to preserve the relationship they have with each other[4]. Furthermore, for parties to adopt the arbitration process, there must have been a pre-existing written agreement or contract which refers any dispute to arbitration, but this is not necessary for parties to adopt the conciliation process[5]. Conciliation, though not requiring a prior agreement, necessitates an acceptance to the process by both parties. A conciliator, as discussed above, assists the parties in coming to a solution but an arbitrator acts as a judge and gives his decision in the matter before him.
In these ways conciliation is a form of Alternate Dispute Resolution which varies from Mediation, Arbitration and Negotiation in the points mentioned above. All forms of ADR are, however, speedy, cost-effective, flexible and party oriented but depending on the parties and the type of dispute, one form of ADR may be more effective than others.
[1] Anubhav Pandey, All you need to know about Alternative Dispute Resolution (ADR), iPleaders, (May 9, 2017, 11:37 AM), https://blog.ipleaders.in/adr-alternative-dispute-resolution/.
[2] Alessandra Squbini, Arbitration, Mediation and Conciliation: differences and similarities from an International and Italian business perspective, MediateIndia, (Aug. 11, 2004, 7:56 PM), https://www.mediate.com/articles/sgubinia2.cfm.
[3] Editor, Conciliation, DisputeResolution Hamburg, (Apr. 9, 2020, 7:05 PM), https://www.dispute-resolution-hamburg.com/conciliation/what-is-conciliation/.
[4] Editor, Forms of Alternative Dispute Resolution, MillerLaw, (Mar. 17, 2020, 3:44 PM), https://millerlawpc.com/alternative-dispute-resolution/.
[5] Pranav Khanna, Difference Between Arbitration, Conciliation, Negotiation and Mediation, IDOCPUB, (Nov. 11, 2019), https://idoc.pub/documents/difference-between-arbitration-conciliation-negotiation-and-mediation-k546xmvzvx48.
- Alternate Dispute Resoltion
- Conciliation
- Comparison
