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Inside Conciliation: What it is, What it Does, and How THAC is a Leading Resource
Alternative dispute resolution (ADR) offers people, businesses, and even countries options for resolving conflicts in personal, political, commercial, or other matters without having to resort to lawsuits and drawn-out, complicated court proceedings. ADR methods can range from very informal, such as a less-adversarial negotiation between the involved parties, to more structured, such as arbitration, where the process is similar to litigation but with more control for the disputants. Conciliation is between those two but more closely related to arbitration. The conciliation process could be more confrontational in nature, and there is a third party overseeing the proceeding.
Conciliation can be very effective, and this article explores different scenarios where this ADR method can help parties in conflict resolve disputes or at least garner a better understanding. Specifically, conciliation as it is applied at the New South Wales Civil & Administrative Tribunal in Australia (NCAT), will be discussed.
What is conciliation?
Like most forms of ADR, conciliation involves an independent third party who facilitates discussions between parties in conflict. However, unlike the more formal litigation in court, conciliation occurs through informal, private meetings before hearings. Furthermore, the conciliation process is under the control of the disputants, thereby lending itself to a more amenable situation between parties, which is more conducive to a beneficial outcome for all.
Conciliation as presented by the NCAT, offers several advantages, which is why the NCAT suggests it before escalating matters to a tribunal hearing. Each side has the opportunity to relate their side of the story in their own words in a free and open exchange. This provides both sides the chance to gain greater insight into their situation as a whole as a more complete picture is discussed. Through this open discussion and under the oversight of a conciliator, there is a greater likelihood that a resolution can be found expediently that is amenable to both sides.
Therefore, it is important that parties who choose conciliation enter the process with an open mind. They should be willing to listen respectfully, understand the other side, and negotiate. Nevertheless, they are not expected to accept solutions they do not feel are fair to them.
What does a conciliator do?
Conciliators play a pivotal role in the conciliation process. Even as parties in conflict are willing to participate in an open discussion, they may need help to analyze all the issues objectively. This is where the conciliator comes in. They are neutral parties whose main goal is to help the parties arrive at a resolution. As they facilitate the proceeding, ensuring that both sides are open and honest about their issues, conciliators also help identify sticking points and recommend ways to reach a conclusion. They can also assist in drafting an agreement that satisfies both parties.
It is important for both parties to understand that a conciliator is not a legal advisor or adjudicator. They are there to assist in the conciliation to reach a resolution that both sides understand and agree to.
Conciliation examples
The NCAT offers four scenarios whereby conciliation helped facilitate a dispute to a reasonable resolution for the parties involved.
Conciliation leading to compromise.
When a landlord unexpectedly evicts a family, they cannot find new accommodation within three months’ notice, so they do not move out. Through conciliation, the tenant finds out that the landlord needs the home for a relative in need, and the landlord hears how the tenant did find a new place but that it would not be available for another month. With the conciliator, the tenant can stay until the new location is general while the landlord finds temporary accommodations for their family. Here, conciliation created an open forum for discussion to reach a compromise.
Conciliation promoting understanding
A customer brought back a treadmill for repairs. After a month of waiting, the customer was told a replacement part had been ordered, but then there was no follow-up from the shop. During conciliation, the shop said that the part had arrived and the repair could be completed, but the customer was dissatisfied and just wanted a refund. The conciliator helped the shop owner understand that poor customer service was at the root of the matter and helped the customer accept the apology, along with a warranty for the repairs.
Conciliation facilitating an expedient resolution.
After purchasing tiles on their own, a couple hired a contractor who installed the tiling in a manner that they felt was sloppy and unacceptable. The contractor offered to fix the work, but the couple demanded money for materials and labor instead. Before resorting to a hearing, the NCAT suggested conciliation. During the process, all the parties came to an understanding whereby they agreed to an amount for the contractor to repay in installments. If this had escalated, the result could have ended by bankrupting the contractor and the couple not seeing any money.
Conciliation providing understanding even with no resolution
A tenant and a rental company were at odds over the return of a deposit as the company claimed more than the tenant expected for cleaning and repairs after she vacated the property. The parties agreed to conciliation, but they could not come to terms with what was acceptable fair wear and tear on the property. Nevertheless, the proceeding allowed both sides to air their grievances openly so that everyone understood the other side. So, although they could not come to an agreement during conciliation, the process provided them with insights that led to a more expedient hearing.
THAC as a conciliation resource
As outlined in the article, conciliation can be an effective way to resolve conflicts without resorting to complicated and often expensive litigations in court. Thailand Arbitration Center (THAC), as a world-class dispute resolution center, has a deep understanding of conciliation and how it is applied in different situations and in different jurisdictions. Although not currently available under Thai law, experts at THAC are available to help parties prepare for conciliation in other jurisdictions, either locally or as a cross-border undertaking.
THAC offers international-standard resources for all aspects of ADR, including conciliation, negotiation, mediation, and arbitration, in Thailand. Parties can access our state-of-the-art facilities that can host in-person or remote hearings while availing themselves of comprehensive administrative support. Furthermore, THAC can assist with every aspect and step in an ADR proceeding, such as drafting dispute resolution clauses or agreements before the process and selecting a highly experienced neutral third party as an arbitrator, mediator, or conciliator.
