THE UNIQUE CONCEPT OF CONCILIATION: WHY IT EXISTS

JONATHAN GOODLUCK

Introduction

ADR methods are voluntary, flexible, confidential, and interest based processes. The parties seek to reach an amicable settlement with or without the assistance of a neutral third party. A quick look at the method of conciliation and mediation might leave you thinking the concept of conciliation should not really be given its separate identity because of its large similarity to mediation. However, we are all human beings with the same characteristics, but we still exist with unique differences from each other ranging from race and personal lifestyle to the tiniest details.

The basic thing is conciliation and mediation both involve the assistance of a third party in the resolution of the dispute. The main difference is that at some point, the conciliator will be asked by the parties to provide them with a non-binding settlement proposal which is in contrast to a mediator, who as a matter of principle, refrains from making such a proposal.

Conciliation is a voluntary proceeding, where the parties involved are free to agree and attempt to resolve their dispute by conciliation. The process is flexible, allowing parties to define the time, structure and content of the conciliation proceedings. They are interest-based as the conciliator, when proposing a settlement, considers the position of each party and offers their opinion as to the merits of each argument and recommend a fair outcome. A successful outcome depends on a mutual agreement and either party is free to walk away at any stage. In Nigeria, conciliation is largely governed by The Arbitration and Conciliation Act 1996.

Steps in Conciliation

There are stages involved in all ADR processes. These steps help in coordinating the peaceful resolution of the dispute. The steps involved in conciliation include:

1. Suggestion of meeting location for conciliation process

2. Appointment of Conciliators by the parties- There shall be one conciliator unless otherwise is agreed by the parties. Where there is more than one, the conciliators ought to act together as a unit. Where there are two conciliators, each party appoints one conciliator. Where there is one conciliator, the parties shall endeavour to reach an agreement on the name of a sole conciliator.

3. Presentation of dispute and written statement from both parties to the conciliator- The conciliator upon appointment may request each party to submit a brief written statement describing the nature of the dispute and to point out the issues hi. At any stage, the conciliator may request a party to submit as they deem appropriate, additional information required in the process of the proceedings.

4. Commencement of the process- The party initiating the conciliation proceeding sends to the other party a written invitation to conciliate under the stated rules. The conciliation process commences when the other party accepts the invitation to conciliate and it is advisable that it is made in writing. If the other party does not accept the invitation, there would be no conciliation process. A reply is technically supposed to be received within 30 days of sending the invitation.

5. Suggestion of resolution to the dispute- Each party may, on the initiative of the conciliator, submit to the conciliator suggestions for the settlement of the dispute.

6. Final Negotiations and possible agreement to the resolution suggested.

Role Of The Conciliator

The conciliator is to be an independent and impartial body in an attempt to reach an amicable settlement of the dispute between parties. Conciliators are guided by fairness and justice, rights and obligations of the parties, business practises between the parties, usage of trade among other things. They shall at any stage make proposal for a settlement of the dispute, these proposals do not need to be in writing and do not need to be accompanied by a statement of reason thereof. To facilitate the conduct of the conciliation proceedings, the parties or the conciliator with the consent of the parties may arrange for administrative assistance by suitable institution or person. The conciliator and the parties undertake that the conciliator shall not act as an arbitrator or as a representative or counsel of a party in any arbitral or judicial proceeding in respect of a dispute that is the subject of the conciliation proceeding.

The conciliator and the parties must keep confidential all matters relating to the conciliation proceeding. This also extends to the conciliation agreement except where disclosure is necessary for purposes of implementation and enforcement. Once the conciliator has made their recommendations, it is up to the parties to decide whether to agree to any proposals. An achieved settlement must be set out in writing in order to be legally binding. The parties, by signing the settlement agreement, put an end to the dispute and are bound by the agreement hence it becomes a ‘binding agreement’.

In simple terms, a mediator does not interfere in the resolution decision process by not giving a proposal unlike a conciliator who may or may not be asked to provide one as needed by the parties. Conciliators play an active role of evaluation and intervention for settling the dispute. Now you know why conciliation exists.

REFERENCES

1. White Code VIA Arbitration and Mediation Center, CONCILIATION, available at: https://viamediationcentre.org (accessed 18 January 2022).

2. Ian Shann, WHAT’S THE DIFFERENCE BETWEEN MEDIATION & CONCILIATION, 18 April 2019, available at: https://moveon.com.au/whats-the-difference-between-mediation-conciliation/ (accessed 18 January 2022).

Institute of Chartered Mediators and Conciliators Nigeria, TRAINING MANUAL - THIRD SCHEDULE, pg. 174-177.