Conciliation is a word that is often used in alternative dispute resolution forums as an attitude or skill to possess when attempting to settle a dispute through alternative forms of resolution, but the process of conciliation stands on its own as a form of alternative dispute resolution.
Conciliation is a method of dispute resolution that parties may choose to participate in to resolve a dispute. The process of conciliation grew in civil law societies in Europe, but the process has grown and spread around the world and has begun to gain popularity in alternative dispute resolution circles. However, because the process is not as well-practiced in the United States, many people, even skilled practitioners, are not fully familiar with the process. This article is the first in a pair of articles detailing the process of conciliation and how conciliation can benefit the dispute resolution process. The first article will examine the process of conciliation and outline the steps that take place throughout a conciliation. The second article will examine the role of the conciliator, the responsibilities of the parties, and the different benefits that using conciliation can provide over mediation.
A Brief Overview of Conciliation
To begin, it is important to create a shared understanding of what this article is talking about when it references conciliation. The conciliation process is often compared to mediation and involves a similar situation—two parties who have a dispute will meet with a third-party neutral and will work together to create a solution to the dispute. Like mediation, the parties are free to leave without an agreement and continue negotiations after conciliation. However, unlike mediation, the conciliator has a stronger role in the process of resolution and can actually assist the parties in coming up with solutions. It provides a place for parties to resolve their disputes, with some guidance, outside court proceedings and litigation. So to recap, conciliation is an alternative dispute process where the parties attempt to resolve their dispute through the help of a third-party neutral.
The process of conciliation aims to be conciliatory. Conciliatory means that the parties approach the process in a way to encourage the parties to remain pleasant with each other and reduce any hostility. It means the parties seek to resolve the dispute and view the issues in a cooperative way, rather than an adversarial way. This also implies that the parties will seek a way to settle the issue in a way that helps all the parties feel like they are taking something of value away from the settlement. In short, being conciliatory means that the parties seek to find a solution that benefits all parties and restores or improves relationships between the parties.
The Process of Conciliation
Conciliation has four main steps: (1) meeting, (2) statement, (3) suggestion, and (4) agreement. It is important to note that conciliation is not a linear process, and the parties can move between the stages and back and forth as needed. It is also important to note that not every conciliation will end in an agreement. However, as the parties and the conciliator move through the dispute, it will often continue until the parties can agree with the proposed solutions. Additionally, we will add a new step to the beginning, which includes the preparation and research around the dispute and possible solutions.
Step One: Preparation
Like any other dispute resolution mechanism, the parties in a conciliation must prepare for the conciliation hearing or proceeding. This allows the parties to present their view of the case in the clearest way possible and helps the parties to understand what it is that they need to agree to a settlement. Solid preparation helps all the parties involved feel like their needs were met and that they can walk away knowing that the settlement agreement is something that will help them move past the dispute and into a restored relationship. Some important things to consider when preparing are:
- Value: It is important to establish a value or dollar amount that a party would like, and then the lowest possible acceptable value that a party would accept. This helps the parties have a clear picture of their range of an acceptable agreement before beginning conciliation.
- Interests: Besides a dollar amount, there are also interests in play. This is particularly important in conciliation because a motivating factor is the desire to keep the relationship between the parties intact. Interests are the things that a party wants or need to move forward that are not monetary values. This could be things like needing an apology for the treatment received or asking the other party to refrain from an activity. Figuring out what can be used to bargain apart from money can be helpful leverage when there seems to be a standstill based on money.
- Merits: It is always best to go into any sort of negotiation with an understanding of what a party’s case looks like on the merits if it would continue to trial or arbitration. A party will often have a stronger view of their case than an outside party might, but it is important to understand the strengths and weaknesses a case may have to know how strong a party may be in negotiations. A stronger case may mean driving a harder bargain.
- Opposition: A final important step is to evaluate all of these points for the other party in the conciliation. Conciliation is about working together to create a solution and having a full understanding of the other party’s stance will help the process to run smoothly.
Step Two: Meeting
The second step in conciliation is the initial meeting between the parties. This is where the conciliator will explain how the process will run, the role that the conciliator will play, and what is expected from the parties as the conciliation continues. This is also where the conciliator will establish any necessary ground rules and ensure that the parties are ready to move forward. Some important things to note at the meeting:
- Authority: The conciliator does have the authority in a conciliation. They can run the meetings and enforce the rules.
- Confidentiality: A conciliator will often inform the parties that the process is confidential and anything shared with the conciliator or each other will not leave the room.
- Nonbinding: The conciliator will establish that unless the parties sign an agreement, nothing said in the room will be binding on the parties.
- Experience: The conciliator will often have experience on the subject matter in the dispute and will usually share this with the parties to allow the parties to feel comfortable with their suggestions on the topic.
- Active Listening: The conciliator will encourage active listening when the other party is talking. This means that the conciliator will require silence when one party is talking and may ask the nonspeaking party to summarize what the other party shared.
Step Three: Statement
This is the part of the conciliation where the parties share their statements of the case with each other. The statement of the case includes the party’s side of the story, explains any details that are not clear, and gives examples of things that they would like to see out of a settlement. This is a major instance in which the conciliator will require active listening from the nonspeaking party. The first party to speak will usually be the one who instigated the conciliation or the dispute, followed by the responding party. At the end of both statements, the conciliator will summarize the issues as articulated by both sides and ask for any clarification needed to continue with the dispute. There are three important parts of a statement that the parties will want to be certain to include.
- Facts: The parties need to explain the dispute from their point of view, and this includes recalling the facts of the dispute as they see it.
- Issues: Each party needs to explain what they see as the main issues in the dispute. The parties may agree on the issues, or they may have different opinions about what is at the heart of the issue. Sharing their view of the issues helps ensure that the conciliator and the parties are focused on the same issues that they would like to resolve.
- Options: Finally, the conciliator needs to have the parties suggest some options for the parties to settle to find a solution that the parties may be able to agree on.
Step Four: Suggestion
After the parties have shared their statements and everyone feels like they are on the same page when it comes to the issues that need to be resolved, the conciliator will consider everything that the parties have said and will suggest how the parties can settle their dispute. The parties will have the choice to accept the offer and settle the case, or they may choose to reject the suggestion and keep negotiating. This step will often happen a few times before the parties find something to agree on or decide that the dispute is past the point of settlement.
Step Five: Agreement
The final stage of conciliation is the agreement. If the parties like one of the options offered by the conciliator, they will create an agreement that will bind the parties like a settlement agreement would. This gives the parties the peace of mind of leaving the conciliation with an agreement that they feel comfortable following. On the flip side, if the parties are not able to reach an agreement with the help of the conciliator, the conciliator will give them tips and ideas to consider as they move on from the discussion. This allows the parties to have a discussion to build on to continue the negotiation.
An understanding of the process of conciliation is important in considering whether the process would be the best one for a dispute. While the next article in this pair will discuss the benefits, it is easy to see from the process discussion above that there are many benefits of conciliation, especially for parties who want to preserve their relationships and need some help finding a solution that works for all the parties involved. In addition to the benefits of conciliation, the next article will discuss how both the conciliator and the parties fit into this process and how each person can participate in the process described above. Hopefully, this article has provided a great base to explore the forum of conciliation further and encourage parties to try settling a dispute in the forum.