ALTERNATIVE

DISPUTE
RESOLUTION-LAW
3840 - 2021/2022
Dr. Antonius R. Hippolyte
CONCILIATION
What is Conciliation?

• A voluntary whereby a neutral third party facilitates negotiations between the parties to a dispute and assists them to
reach a settlement.

• The process is identical to mediation.

• However there is international or national consistency over the terminology, so the terms ‘conciliation’ and
‘mediation’ can be used t describe the same process.

• Mediation is the term that is more commonly used now in most countries to describe ADR by third-party facilitation
in civil and commercial disputes.
What is Conciliation?

• In some types of conciliation, the ‘conciliator’ may express an opinion on the merits of the dispute and may, and
usually will, suggest a solution if the parties cannot put forward proposals themselves to resolve the matter.

• In other types of conciliation processes, the conciliator will adopt a purely facilitative role.

• Conciliation is most commonly encountered in family and employment disputes.

Advantages of Conciliation
Like other ADR options, there are numerous advantages to making recourse to
Conciliation. These include:
• Conciliation is cheaper than going to court
• Disputes are generally settled quicker
• Conciliation is based on client autonomy and contractual principles of agreement as such
parties control the process
• Parties have a choice of forum i.e. who hears the dispute and where that dispute is heard.
• A wider range of issues can be considered
• A wider range of outcomes can be achieved
• The process is more flexible
• Flexibility with regards to evidence
• The process is confidential
• Use of a problem-solving approach
• Possible reduction of risk
• Client satisfaction
Disadvantages of Conciliation
• Increased expense if the conciliation is not successful
• Additional delay if the process is not successful
• Possible reduction in outcome compared to a court judgment
• Lack of a clear and public finding
• Loss of potential strategic use of procedural steps
• Loss of potential advantage of evidential rules
Conciliation Process
• Conciliation is a confidential and ‘without prejudice’ voluntary process.
• Either party can withdraw from the process at any time before settlement is reached. The conciliator has no power to
impose a solution on the parties.
• Whether a settlement is reached and, if so, the terms of that settlement, lies within the control of the parties
themselves.
• The Conciliation process is very similar to mediation. The difference is that:
• Parties will generally not usually select and appoint the conciliator themselves.

• the conciliator will hold private and joint meetings with the parties in much the same way as a mediator, although some conciliators will prefer
to use joint meetings.

• the conciliator will perform the same function as a mediator in moving the parties towards settlement, although he or she may, in some cases, be
more active in putting forward proposals for the consideration of the parties.
• In that sense the role of the conciliator is more akin to that of an evaluative mediator than a facilitative mediator.

• like mediation, the parties do not have to agree to any solution that is recommended by the conciliator, although they can agree (usually in
writing in advance of the conciliation) that any solution put forward in binding on them.

• An agreement reached in conciliation can be recorded and enforced in the same way as agreements reached in other ADR processes
Employment Disputes
 Mandatory Early Conciliation In Employment Disputes
• Conciliation has frequently been used to settle employment disputes
• In the UK, on 6th May 2014, the Enterprise and Regulatory Reform Act 2013 introduced a mandatory requirement for prospective claimants to
consider early conciliation of the dispute before presenting a claim in the employment tribunal.

• Claimants make a request for early conciliation by completing the early conciliation notification form on the
Advisory, Conciliation, and Arbitration Service (ACAS).

• An ACAS conciliator will then contact the parties and explain what is involved in early conciliation and seek their agreement to the process.

• For a period of up to one month starting on the date of the request for conciliation, the conciliation officer must endeavour to promote a
settlement between the parties.

• This period can be extended by agreement, but such extension can only occur once and must not exceed 14 days. If during this period the
conciliation officer concludes that settlement is not possible, then ACAS must issue an early conciliation certificate which includes a unique
reference number which must be presented to the employment tribunal as evidence that the parties attempted to settle the dispute.

• Where agreement is reached this is recorded by ACAS on its designated form and this is signed by the parties and is legally binding on the
parties.

• ACAS will then inform the parties that agreement has been reached.
 Post Claim Conciliation In Employment Disputes
• ACAS will continue to provide conciliation to the parties after a claim has been made to the employment tribunal in respect of
employment rights and this can occur up to the date of the employment tribunal hearing.
• Where possible ACAS will seek to ensure that the same conciliator is involved in both early conciliation and any conciliation that takes
place after the claim has been commenced.
• Both pre- and post-claim conciliation is free to the parties.
• ACAS conciliators are impartial and independent and they are not part of the employment tribunal service.
• The conciliator will not impose a solution on the parties but will facilitate negotiations between the parties and assist them to reach
their own solution.
• The parties can reach a solution that a tribunal has no power to order (eg the provision of a reference, perhaps in agreed terms)
• The Conciliation is Confidential and the tribunal will not be given details of what took place during the the process if settlement is not
reached.
• It was held in Clarke v Redcar & Cleveland Borough Council [2006] IRLR 324, that it is not the function of the conciliator to ensure
that the terms of the agreement are fair to the parties, nor should the conciliator advise the parties about the merits or likely outcome of
the case.
• ACAS reports on its website that it dealt with over 83,000 early conciliation cases between April 2014 and March 2015 and nearly half
of all claimants who used this process either reached a settlement or avoided for a tribunal claim.
Collective Conciliation

• Conciliation can also be used to describe talks between representative

groups such as trade unions and employers
Family Disputes
Conciliation in Family Cases

• Conciliation is commonly employed in family disputes where the choice of

process is driven by the court rather than by the parties.

• In-court conciliation is offered in disputes by parents over children after

the breakdown of a marriage
 In- Court Family Conciliation Process
• In court conciliation consists of a meeting at court, usually lasting around one hour, between the parents with a neutral independent
party to help them negotiate disputes relating to contact and residence arrangements for children following separation or divorce.

• The aim is to help them resolve their disputes without the need for court intervention.

• In private law proceedings relating to children conciliation occurs in the following ways:
• A first hearing dispute resolution appointment will be arranged before a judge where the court will consider the extent to which
the parties can resolve some or all of the issues with assistance of the conciliator.
• At the first hearing dispute resolution appointment or subsequent conciliation appointment, the parties will outline the nature of
the application and the matters in dispute to the judge and conciliator
• The court in collaboration with the conciliator will seek to assist the parties in conciliation and resolution of the issues between
them.
• All discussions at the conciliation appointment are privileged and will not be disclosed in any subsequent hearing other than a
further conciliation appointment.
• If agreement is reached, the judge will make the relevant orders by consent.
• If agreement is not reached, then the judge will give directions for the hearing of the application
• In Re T (a child) [2015] EWCA CIV 719, it was held that the facilitation of in court conciliation by a judge at the first
hearing dispute resolution appointment, does not disqualify the judge from continuing involvement with the case,
considering that information obtained in the process is privileged.
• However, in an exceptional case, it is possible that a judge might express a view on the merits that might make it
inappropriate for him or her to conduct the substantive hearing.
Disability Conciliation Service
• Instead of going to court, this service offers individuals with the disability
the opportunity to resolve disputes under the Equalities Act 2010 in relation
to discrimination in the provision of:
• goods
• Services
• Education
• employment
• A conciliator will assist the parties to help them resolve the dispute
• The service is free to the parties as it is funded by the Disability Rights
Commission (DRC) and referrals must be made by the DRC.