What is Conciliation? How does it work?
Alternative dispute resolution (ADR) is an appealing alternative to litigation in court for many people. As they offer greater control, flexibility, and cost savings for involved parties, personal and commercial disputes can benefit from ADR methods, such as arbitration. In Thailand and other parts of the world, most people will be familiar, at least with the terms, arbitration, mediation, and negotiation. Conciliation is also another form of ADR that may have yet to find widespread use and that often may be confused with mediation. Still, it is a practicable, if not beneficial, means of alternative dispute resolution.
This article will discuss this form of ADR, clarifying what is conciliation, how it works, and what its benefits are.
What is conciliation?
Alternative dispute resolution methods typically involve a less adversarial process than a lawsuit in court, whereby open discussions between parties in conflict are facilitated, usually under the watchful eye of an independent, neutral third party. The level of this third party’s participation ranges from non-existent (negotiations involve only disputing parties) to fully involved (arbitrations are decided by arbitrators or arbitral tribunals). Conciliation and mediation fall in the middle, with mediators focused more on facilitating discussions, while conciliators have greater involvement.
Like other forms of ADR, parties have greater control over the process, defining the rules, scheduling, and almost every aspect of the conciliation. Significantly, in a conciliation proceeding, parties appoint a conciliator who works with them to achieve a settlement. The conciliator can be a skilled ADR professional who is familiar, or even an expert, in the sector in question (e.g., intellectual property or sports). Where conciliation differs from mediation and is more like negotiation is in the authority the conciliator has in reaching the settlement. A conciliator can not only make recommendations, but they can also draft settlement agreements as they see fit.
How does conciliation work
Some jurisdictions, such as India (Arbitration and Conciliation Act of 1996), have a statutory framework for conciliation; however, there are internationally accepted best practices that ADR professionals, such as those at the Thailand Arbitration Center (THAC), can recommend and advise on, including the Beijing-Hamburg Conciliation Rules. Barring jurisdictional statutory rules, parties can agree to and establish their own rules on how their conciliation will proceed. These rules will become the basis for the conciliation agreement.
A conciliation agreement can be reached by the parties before or after a dispute arises. Along with the rules, the parties will appoint a conciliator. If there are no legal constructs for a conciliator in the jurisdiction(s) in question, then, technically, anyone could be appointed. This person would have to meet the requirements of the parties, although ADR institutions often will have a directory of experienced ADR professionals who could fulfill this role.
The conciliator then takes charge of the proceedings, working with the parties to set schedules, such as for documentation submission and hearings. Then the conciliator will conduct the proceedings, ensuring that they meet the expectations of all involved to the best of their ability. The conciliator will first try to moderate the discussion so that the parties can come to an understanding on their own and reach an amicable settlement. Failing that, however, the conciliator can prepare a proposed settlement unilaterally that the parties can choose to accept.
Advantages of conciliation
Conciliation offers many benefits that are similar to those of other ADR methods. Parties have close to full control, unlike in litigation, with which parties would have to abide by court rules, fees, and schedules. With that control, they can, as mentioned above, set the schedule and rules, allowing the parties the flexibility that comes with time and cost savings. Also like other forms of ADR, the fact that parties must agree to the rules and procedures presents a unique opportunity for disputants to find common ground before they start the conciliation process. By confronting the machinations of conciliation, the parties may start to understand the other side’s point of view, possibly reducing any adversarial feelings and promoting a mutually beneficial resolution.
Find out about conciliation at THAC
Conciliation may be an ideal alternative dispute resolution method for your personal, business, or commercial conflicts. If you want to find out more, you can rely on the Thailand Arbitration Center (THAC) as your expert resource for conciliation and other forms of ADR, including a directory of ADR professionals who can act as a conciliator for your proceeding.
THAC is a world-class dispute resolution center that is conveniently located in central Bangkok, within walking distance of the BTS Skytrain system and just off one of the city’s major thoroughfares, Sukhumvit Road. With easy access from all parts of the city, including from major international airports, THAC is ideal for local and cross-border ADR proceedings. THAC offers state-of-the-art facilities that can accommodate in-person as well as remote hearings and has developed an innovative online dispute resolution platform, TalkDD.
For further information about conciliation, mediation, or any other ADR option, please feel free to contact us at [email protected] or +66 (0) 2018 1615.