In the first article in this pair, we explored the steps in a conciliation proceeding and what the parties can expect when using conciliation to resolve a dispute. In this article, we turn to the roles of the participants, both the conciliator and the parties, and the benefits of using conciliation to try and find a settlement agreement that the parties can rely on. The roles of the conciliator and the parties are distinct, as they are a part of the process for different reasons, but the goal of both parties is the same—to find a way for the parties to resolve their dispute and leave their relationship intact. And this goal is one of the major benefits of conciliation. So for the second installment of this pair of articles on conciliation, the people that contribute to and participate in the process are at the center.
The Role of the Conciliator
The role of the conciliator is a unique one in dispute resolution. Unlike mediators, the conciliator plays a role in settling the dispute. Where a mediator tends to control the process of mediation but not control the outcome, a conciliator has an active role in the conciliation and can suggest solutions for the parties to consider. However, unlike an arbitrator, who can issue a decision on the dispute, the conciliator is not able to issue a binding solution, only offer suggestions that the parties may choose to agree to. Finding a balance between inviting the parties to shape their own solution and providing appropriate suggestions and guidance is the major role of the conciliator and is not an easy role to fill. Some other important responsibilities of a conciliator are:
- Neutral: One of the most important roles that a conciliator has to follow is that of a neutral. A conciliator may not be partial to one of the parties or suggest that one party has a stronger case than the other. Remaining neutral helps to protect the integrity of the suggestions that a conciliator makes and ensures that both parties are fully understood and acknowledged. It also helps the parties feel comfortable will sharing their positions with the conciliator, knowing that they will be valued.
- Authority: The conciliator is also the authority figure for the parties and the process. This gives the parties someone to look to and allows them to focus on the issues at hand rather than the process that the negotiation will follow. Having this authority also allows the parties to trust the suggestions made by the conciliator as they negotiate because they understand that the conciliator is the one directing the settlement.
- Experienced: Conciliators often have some experience in the subject matter that they are aiding in resolving. This adds another layer to the concept of authority because the parties see the conciliator as someone with more knowledge and experience with the subject matter. This increases the trust between the parties and the conciliator.
- Intuitive: Much of the conciliation process requires that the conciliator correctly identifies the interests and needs of the parties that the parties may not even acknowledge fully themselves. This will allow the conciliator to find new ways for the parties to relate to one another and work together, along with the conciliator.
- Creative: Because the conciliator makes suggestions to the parties on how to resolve the dispute, the conciliator needs to be creative with their suggestions. Because conciliators are intuitive, they will notice the things that may help a party reach a settlement that the parties may not even know about themselves. Combining this with creativity allows the conciliator to find new and different ways to help the parties settle the case and move forward.
- Relational: Because the goal of conciliation is to create a solution to the dispute while allowing the parties to maintain or mend their relationship, a conciliator needs to be relational and understand relationships between the parties. This will allow the conciliator to make suggestions at a time when they will not disrupt the relationship between the parties. A good conciliator may also work to mend the relationship before they discuss the issues at hand because they see the value in restoring the relationship and the value that will add to the negotiations.
- Facilitative: The conciliator will also ensure that the process of the conciliation follows the plan and that the parties can participate fully in discussions. This may mean that the conciliator stops discussions to hear from a participant that could not speak as freely.
- Non-judgmental: Finally, a conciliator needs to be able to approach each situation without making judgments of the parties or their cases. They do not evaluate how the parties would likely fair in litigation as evaluative mediators do, but encourage the parties to continue to move toward a settlement.
The role of the conciliator is not easy, and they must balance many separate roles and responsibilities at one time. Conciliators do not give legal advice, side with or advocate for either party or decide fault. The conciliator exists to focus the parties on the possible solutions and encourage conversations on these possible solutions. The best conciliators will give suggestions that allow the parties to think deeper and further about what they want and need out of the settlement and encourage further discussions. Conciliators can help parties settle in a way that leaves everyone feeling like they accomplished their goals.
The Role of the Parties
While the conciliator is the person who runs the conciliation, the parties also have an important and necessary role. Without the parties, the dispute would not exist and there would be no settlement discussions. The parties are also important because the conciliation is seeking to restore the relationship between the parties, so the parties are also responsible to explain and show a relationship that needs to be preserved. Other characteristics and responsibilities include:
- Prepared: The best thing that the parties can do for conciliation is to be prepared. The previous article focused on how the parties can come to the negotiation with the best possible plan in place and find a way to settle. It is important to establish the limits on negotiation that the party feels comfortable with, the other interests at play in the negotiation, the strength of their case, and the same things for the other side. Doing this preparation will allow the negotiation to run smoothly as both parties understand where the case is.
- Authority: It is important for the people attending the conciliation to have the power to settle. This is often an issue when one or both parties is a company or an organization because not everyone in the organization will have the authority to settle the dispute on behalf of the organization. However, a conciliation will only work if the parties can negotiate freely with the possibility of settling, so sending someone without the authority to settle may cause the conciliation to stop before it starts.
- Respect: Parties will get the most out of the conciliation process when they respect the conciliator and the process. Following the rules established by the conciliator will help the parties to achieve the best possible result.
- Participation: Participation is vital in the process of conciliation, both to settle the dispute and to continue to strengthen the relationship between the parties. If the parties are unwilling to participate fully in the process, it is unlikely that the conciliator will be able to achieve a result that that party will be happy with.
When the parties are prepared and ready to participate in the conciliation process, they will be much more successful in their negotiations.
Benefits of Conciliation
Before closing this pair of articles on the process of conciliation, it is important to discuss the strengths of conciliation and how it can give the parties the ability to settle their disputes in a new forum. Some of the benefits of conciliation include:
- Confidentiality: The process of conciliation is confidential. Everything said in the conciliation will remain confidential. This allows the parties to communicate freely without worrying about their reputation or outside influences.
- Neutrality: Like many other alternative dispute resolution forums, the person leading the negotiations is neutral and is not allowed to advocate for either side. This allows the parties to feel like the process is collaborative and fair.
- Suggestions: Other alternative dispute resolution forums do not allow the facilitator to suggest solutions to the dispute and then allow the parties to decide whether they like the suggestion or want to negotiate further. This allows parties who may not have enough ideas for regular negotiation or mediation to participate in a forum that gives them more guidance and moves them closer to a resolution.
- Restorative: Conciliation is meant to be restorative to the parties involved and encourages them to heal their relationship that has been fractured by the dispute.
- Casual: The process of conciliation is not as formal as litigation or arbitration and allows the parties to have a conversation about their dispute. It also decreases the costs of the dispute because the parties can save on filing and legal fees.
Conciliation allows the parties and the conciliator to follow their roles to create a solution that both settles the dispute and encourages the parties to reconcile. The conciliator guides the parties through the negotiation and provides creative solutions to help the parties settle the parties. The parties come prepared and participate fully in the process of conciliation. When the process works for the parties, it carries a host of benefits that ensures that the parties are restored. Conciliation is, overall, a process that aims to help restore the parties, especially parties who are willing to settle but are stuck. If a dispute needs guidance and a push toward a settlement that considers the underlying interests and relationships, using conciliation to resolve the conflict may be the best option.