The types of conciliation can be overwhelming and confusing to sort through to find the best process for a given dispute. Parties have to evaluate whether arbitration, mediation, conciliation, or facilitation would fit best to resolve a dispute between the parties, and then the parties also have to prepare for the process that they choose. Finding the best process can help the parties save money, resolve a dispute, and move forward with life after the dispute. This article will consider the different types of conciliation and how a party may resolve their disputes. It will move from the least binding process—facilitation—to the most binding and involved process—arbitration.
An Important Note
Before jumping into these processes, it is important to note that this article will only be providing a high-level view of each process, and thoroughly understanding the forum is the best way to be prepared and make an informed choice. There are many other articles on ADR that focus on each process individually and outlines how to prepare for a dispute resolution mechanism. If you are preparing for a hearing or conference, it would be best to consult specific articles for that mechanism. However, if you are looking for a basic overview of each process with some strengths and weaknesses of each procedure to determine the best forum for your dispute, this article may be helpful.
As mentioned above, facilitation is the least binding and intrusive of the types of conciliation. Facilitation is a group process where a third-party neutral without a determinative role in the conflict helps the group identify the issues in the group and identifies possible solutions to allow the parties to work better together and solve the conflict. However, unlike many of the other forums, facilitation’s goal is not for the parties or the facilitator to find solutions and agree. Instead, facilitation aims to open up a dialogue within the group and find ways for the group to communicate better and resolve conflict. Facilitation seeks to encourage valid information, free and informed choice, and the internal commitment to those choices. A facilitator merely provides the structure for the conversations and allows the parties to discuss and make their own choices.
Facilitation tends to follow four steps:
- Identify Problems: The biggest goal of facilitation is for the group to identify their issues and conflict. These can be both immediate problems and issues that are affecting the group’s dynamics but may not be as easily noticed. The group must acknowledge the issues that need to be addressed before the group can address and heal from those issues. Facilitation may end here. However, if the group seems to be heading in a positive direction, the facilitator may continue the proceeding.
- Develop Options: The next step is for the parties to develop options for resolving the issues they identified. This may be very simple once the parties understand the issues or the extra issues identified may cause the group more confusion and issues to resolve.
- Consider Alternatives: The group will work to consider each of the alternative solutions that the group has proposed and evaluate whether the solution will help resolve the dispute or whether more is needed.
- Agreement: If the group can find a solution, they can make an agreement and create a plan based on the agreed-upon solution.
Facilitation can be particularly helpful in the following instances:
- Skills-Based Issue: Facilitation may be helpful for a group that is facing highly skilled conflict. The group may use a facilitator that is knowledgeable about the subject matter and can help the group discuss the dispute within that skill set.
- No Legal Issue: Facilitation is available for all kinds of disputes, even those that are not the result of a legal issue or dispute. Facilitation may be used to help a family work through their internal issues or a company facing productivity issues.
- Chronic Conflict: When the group is often at odds and the conflict, while resolved, is not effectively solved, facilitation can help the group find the root of the issue and develop an option to move forward.
Facilitation may not be the best option in the following instances:
- Two-Party Issues: Facilitation often focuses on issues within a group. Facilitation may not work as well for issues that have two adversarial sides, because the parties will likely be at odds and not benefit from the structure.
- Agreements for Other Forums: When parties sign an agreement to mediate or arbitrate a dispute, it cannot be facilitated.
- Complex Legal Issues: Certain types of law, such as international business law, may not fare well under facilitation because they involve the intersection of many kinds of law, and the parties may not be able to fully discuss and identify all the issues on their own.
Mediation is the process of negotiation with a neutral third party that seeks to help the parties settle the case. It separates the parties from the adversarial litigation system and encourages the parties to find creative and new ways to settle their cases. The process saves the parties time and money and can preserve relationships between the parties that may fall apart if the parties faced each other in court. Mediation seeks to help the parties understand the issues and resolve their disputes. An important aspect of mediation is the goal of encouraging the parties to come up with their own resolutions, which separates it from conciliation and arbitration. Mediation usually involves four stages:
- Opening Statement: Mediation begins with opening remarks from the mediator that establish the ground rules of the mediation and explains the process to the parties so that everyone is prepared to move forward.
- Problem Determination: Problem determination will usually move in stages. Usually, the parties will present their statements of the case, outlining the facts and issues that they see. Next, the mediator will likely break the parties up into separate rooms and ask the parties if any underlying interests need to be addressed. Finally, the mediator may bring the parties back together to establish the exact issues that the parties will need to settle to move forward.
- Bargaining: This is the portion of a mediation where the parties are negotiating for a settlement. The parties will send offers back and forth and consider the possible settlement agreements. The parties will usually identify the strengths and weaknesses of their case and understand what will be an acceptable offer.
- Agreement: While this stage is called the agreement, mediation may end with the parties leaving to continue negotiations or move on to litigation or arbitration. If the parties do reach an agreement, the mediator will iron out the details with the parties and the parties will sign a mediated settlement agreement.
Mediation may be particularly helpful in these cases:
- Small Claim: If a claim is small, the money and time saved in mediation may be the best option and return the largest amount of the money to the aggrieved party.
- Touchy Subjects: If a case would expose business or personal secrets that one or both parties would not feel comfortable disclosing, mediation allows the parties to resolve their disputes confidentially.
- Distracted Parties: Mediation can be particularly beneficial in instances where the parties are likely to settle but are distracted by other things and have not sat down to formally discuss a settlement. Mediation provides a specific day and time for the parties to discuss the case.
Mediation may not be the best choice in the following instances:
- Power Imbalance: Because mediation is usually driven by the parties, if one of the parties has a lot of power over the other and the negotiating power would not be balanced, mediation may not be the best option because the weaker party may end up settling in a poor position to appease the powerful party.
- Clueless Parties: In cases where the parties are not settling because they are unable to come up with solutions, mediation will not be the best forum because the parties drive the majority of mediation and the settlement, so there would be no offers to settle.
Conciliation is a process of dispute resolution that seeks to be conciliatory in dispute resolution and offers hands-on facilitation to allow the parties to be able to resolve their disputes. One of the goals of conciliation is to preserve the relationship between the parties and find a way for the parties to agree. Like mediation and facilitation, a conciliator is a third-party neutral that helps the parties resolve their dispute. However, unlike facilitators and mediators, conciliators can suggest options that the parties may adopt as their settlement agreement. Conciliation was created in European civil law societies and draws much of its inspiration from the laws of these countries. It is confidential, nonbinding, and neutral. Conciliation involves four steps:
- Meeting: The first step in conciliation is the meeting between the parties and the conciliator. This is where the conciliator will explain how the process will run, the role of the conciliator, and the expectations of the parties. The conciliator will also establish any necessary ground rules and ensure that the parties are ready to move forward.
- Statement: This is the stage where the parties share their view of the facts and the case. The parties will take turns explaining how they see the fact, the issues, and the possible options for a settlement.
- Suggestion: This is the stage where the conciliator takes what they have heard from the parties and suggests a possible settlement that the parties can agree with. If the parties like the suggestion, the conciliation will move on. If the parties need to change things, the conciliator will ask for clarifying information and find new suggestions to bring.
- Agreement: Agreement happens when the parties like one of the options proposed by the conciliator and agree to use that settlement option as the way forward.
Conciliation can be particularly helpful in the following situations:
- Important Relationships: If the parties would like to preserve their relationship past the dispute, conciliation may be a good option because it takes the pressure and blames off the parties because the conciliator will be the one making suggestions for settlement. Conciliation also seeks to preserve relationships by encouraging active listening and open minds.
- Clueless Parties: For many of the same reasons that mediation is not good for parties that cannot come up with offers, conciliation offers a solution where a neutral party can offer solutions.
- Creative Solutions: Occasionally, a dispute needs extra creativity to be solved. With the conciliator making suggestions, the parties may find a solution that would not have been suggested but for the conciliator’s involvement.
Conciliation may not be the best option in the following disputes:
- Uncooperative Parties: If one or both of the parties is uncooperative, conciliation will not work because the conciliator and the other party will not have an accurate picture of what the party needs.
- Adversarial Parties: Conciliation may not be the best option when the parties are at odds and do not want to preserve their relationship. Especially because the process is only binding if the parties agree, it would be difficult to get a binding result out of adversarial parties.
Arbitration is the most binding of the alternative dispute resolution processes and functions similarly to a court. Arbitration involves the determination of the case by a neutral third party. Arbitrators hear a case either on a solitary basis or on a panel of arbitrators that will hear evidence and issue an award. Arbitration is the most similar to traditional litigation because the parties will receive a binding decision at the end of the arbitration. Arbitration is often used in conjunction with other dispute resolution mechanisms, such as agreements that a dispute will go to arbitration if the parties are unable to settle in mediation. It is voluntary, which means that all the parties must agree to submit the dispute to arbitration. It is also confidential, so the parties can resolve a dispute without a public record. Additionally, many trade organizations around the world use arbitration to settle disputes both domestically and internationally. Arbitration usually moves through five stages:
- Agreement: Because arbitration is voluntary, the parties must agree to submit a dispute to arbitration. This may happen before the dispute arises in a contract signed by the parties, or it may happen in an agreement to submit the specific dispute to arbitration.
- Arbitrator Selection: The parties need to select the arbitrators if the process is not provided for by an organization. The arbitrators must be neutral, so all parties must agree to the arbitrators.
- Opening Statements: The parties will provide opening statements that explain the case and law as the parties see it.
- Evidence: The parties will also present evidence to the arbitrators that the panel will evaluate.
- Award: When the hearing concludes, the arbitrators will create an award. This is similar to a judgment in court, and the parties will be bound by the decision in the award.
Arbitration may be helpful in the following situations:
- Specialized Knowledge: When a decision requires specialized knowledge in a certain area of law, arbitration may be helpful because the parties can choose an arbitrator, so they may choose one with the knowledge needed to determine the dispute.
- Secrecy: When a decision needs to be kept out of the public record, the confidentiality of arbitration can be beneficial.
- Structure: Arbitration may be beneficial for disputes that need the structure and decision of litigation but would prefer to keep costs down. Arbitration provides the structure and decisions of litigation, but also tends to be faster and cheaper.
Arbitration may not be the best option in the following situations:
- Interim Relief: If a case needs interim relief, such as stopping a party from selling property, arbitration may not be the best option because it does not have the enforcement power of a traditional court for interim relief.
- Possibility for Appeal: Arbitration is very difficult for parties to appeal, so if there is a possibility that an appeal may be needed, arbitration may not be the best option.
Finding the appropriate forum to resolve a dispute is not an easy decision, but understanding the differences between the options will aid in the decisions. Each of the forums has situations that it would greatly benefit, and situations that would not benefit from the forum. Resolving a dispute the right way will help the parties feel that they have accomplished the best result and move forward with their lives without the dispute.