POST GRADUATE LEGAL STUDIES &
LEGAL AID
ALTERNATIVE DISPUTE RESOLUTION
(ADR)
MODULE 3: CONCILIATION
Conciliation
CONCILIATION
• Governed by the Arbitration and Conciliation Act but it is
premised on the consent of the parties.
Section 48 of the ACA
• Except as otherwise provided by any law for the time being in
force, and unless the parties have otherwise agreed, this Part
shall apply to conciliation of disputes arising out of a legal
relationship, whether contractual or not, and to all proceedings
relating to it.
What is Conciliation?
Conciliation refers to a process through which a third party
provides procedural and/or technical assistance to help
individuals or groups in order to resolve their
problems/Conflict
Conciliation
A process in which a neutral person meets with the parties to a
dispute and explores how the dispute might be resolved; esp., a
relatively unstructured method of dispute resolution in which a
third party facilitates communication between parties in an
attempt to help them settle their differences.
Black's Law Dictionary (8th ed. 2004) , Page 873
What is Conciliation?
The 2002 UNCITRAL Model Law on International
Commercial Conciliation defines conciliation;
“... a process, whether referred to by the expression conciliation,
mediation or an expression of similar import, whereby parties
request a third person or persons (“the conciliator”) to assist
them in their attempt to reach an amicable settlement of their
dispute arising out of or relating to a contractual or other legal
relationship. The conciliator does not have the authority to
impose upon the parties a solution to the dispute.”
Conciliation
• Conciliation is similar to mediation in that it involves
facilitation of negotiations, but the conciliator has additional
expertise and authority.
• In conciliation, negotiations are assisted by a conciliator.
• The conciliator has technical or legal expertise and is
empowered (usually by law) to offer technical and legal
information and advice and even suggestions for an outcome.
Mediation Series: Mediation Essentials, Chapter One, 6
What is Conciliation?
• The broad nature of the definition indicates that there is no
intention to distinguish among procedural styles or approaches
to mediation or conciliation.
• However, a distinction can be found between the two processes
in Section 4 of the Model Law which states that “The
conciliator may, at any stage of the conciliation proceedings,
make proposals for a settlement of the dispute”
• Similarly, the Centre for Effective Dispute Resolution in the
United Kingdom defines conciliation as “ a process where the
neutral takes a relatively activist role, putting forward terms of
settlement or an opinion on the case.”
What is Conciliation?
• Therefore, it can be stated that the conciliator has a more
interventionist role in bringing the two parties together
and can make proposals for settlement to the parties
which they are free to choose to accept or reject.
• Unlike, for example an arbitrator, a conciliator does not
have the power to impose a settlement.
What is Conciliation?
Bunni, The FIDIC Forms of Contract (Blackwell
Publishing 3rd ed., 2008) at 445 states;
“Conciliation is a more formal process than mediation and it
could generally involve the engagement of legal
representatives, thus making it a more expensive process than
mediation. There is, however, the added advantage that should
no amicable solution be reached, the conciliator has the duty to
attempt to persuade the differing parties to accept his own
solution to the dispute.”
Characteristics of Conciliation
• Voluntary: No party is forced to use a conciliator, nor are they
forced to agree to a particular settlement.
• Assisted Negotiation: The conciliator does not decide for the
parties but helps them make their own decision.
• Informal: The proceedings of conciliation are relaxed and
informal.
• Confidential: It is up to the parties to jointly establish any
limits on confidentiality.
Conciliation
Third party assisted the negotiation process
Third party impartial to help parties communicate
Parties explore their best options for solutions
Parties are decision makers when reach agreement
Relationship is important
Implementation is on responsibility of parties
Main benefits- conciliation
§ Conciliation ensures party autonomy.
The parties can choose the timing, language, place, structure and content of the
conciliation proceedings.
• Conciliation ensures the expertise of the decision maker.
The parties are free to select their conciliator. The parties may base their
selection on criteria such as; experience, professional and / or personal expertise,
availability, language and cultural skills. A conciliator should be impartial and
independent.
• Conciliation is time and cost efficient.
Due to the informal and flexible nature of conciliation proceedings, they can be
conducted in a time and cost-efficient manner.
• Conciliation ensures confidentiality.
The parties usually agree on confidentiality. Thus, disputes can be settled
discretely and business secrets will remain confidential.
Conciliation
The conciliator shall assist the parties in an independent
and impartial manner in their attempt to reach an amicable
settlement of their dispute.
Section 53(1) Arbitration and Conciliation Act
Conciliation- Commencement
• Written invitation to conciliate (S. 49 ACA)
• Conciliation begins with written acceptance to conciliate
• If the party rejects the invitation, there will be no conciliation
proceedings (s. 49 (3) ACA)
• The UNICITRAL Model Law on International Conciliation addresses the
principle of self determination and the sets out that:
• The parties are free to agree, by reference to a set of rules or
otherwise, on the manner in which the conciliation is to be conducted.
• Failing agreement on the manner in which the conciliation is to be
conducted, the conciliator may conduct the conciliation proceedings
in the circumstances of the case, any wishes that the parties may
express and the need for a speedy settlement of the dispute
Basic steps in Conciliation
Part V of the Act provides for the steps to follow in Conciliation proceedings:
§ Written invitation for conciliation which is only initiated if the other party
accepts the invitation. (Sec. 49 ACA)
§ Similar to arbitration proceedings, the parties appoint a Conciliator (sec. 51
ACA)
§ Each party then submits to the Conciliator a brief written statement
describing the general nature of the dispute and the points at issue (Sec. 52
ACA)
§ Each party may at his/her own initiative submit to the conciliator
suggestions for the settlement of the dispute (sec. 57)
§ Once elements of settlement surface during the course of the proceedings,
the Conciliator helps the parties to draft a settlement agreement, which is
signed by the parties, hence terminating the proceedings. (sec. 58)
§ The Settlement agreement also served the same status as an arbitral award
under the Act. (Sec. 59)
Conciliation
§ Present dispute
§ Invitation by one – accepted
§ Conciliator’s role – agreement –
§ Enforceable
Roles and responsibilities
of a conciliator
• A conciliator in a conciliation proceeding is a neutral adjudicator
whose role is to decide on the course of the proceedings, aid the
parties in reaching a settlement that is mutually beneficial and to
uphold and abide by the principles of fairness, neutrality, justice
and objectivity while striving to reach a settlement as well as
during the course of the decision-making process.
• The Arbitration and Conciliation Act, bestows upon the
conciliator certain responsibilities and provides for some
guidelines that a conciliator has to follow
Roles and responsibilities of
a conciliator
• According to section 50 of the Act, there could either be a
sole conciliator or two or three conciliators, according to the
wishes of the parties. In case of more than one conciliator,
they shall work jointly and in cooperation with each other.
• According to section 51 of the Act, to conduct the proceedings
of the conciliation, the parties may appoint the conciliator or
conciliators, if there are more than one. When there are three
conciliators, the parties shall appoint the two conciliators and
they, in turn, shall apoint the third conciliator.
Roles and responsibilities of a
conciliator
Section 53 of the ACA Role of conciliator.
(1) The conciliator shall assist the parties in an independent and impartial
manner in their attempt to reach an amicable settlement of their dispute.
(1) The conciliator shall be guided by principles of objectivity, fairness and
justice, giving consideration to, among other things, the rights and
obligations of the parties, the usages of the trade concerned and the
circumstances surrounding the dispute, including any previous business
practices between the parties.
(1) -a settlement of the dispute can be proposed by the conciliator at any time
when the proceedings are still in force. Any such settlement proposition
need not be in writing or accompanied by a statement of reasons,
necessarily.(section 58 ACA)
Roles and responsibilities of
a conciliator
(3) The conciliator may conduct the conciliation proceedings
in such a manner as he or she considers appropriate, taking
into account the circumstances of the case, the wishes the
parties may express, including any request by a party that the
conciliator hear oral statements, and the need for a speedy
settlement of the dispute.
(4) The conciliator may, at any stage of the conciliation
proceedings, make proposals for a settlement of the dispute.
(5) Proposals made under subsection (4) need not be in
writing and need not be accompanied by a statement of the
reasons for them.
Roles and responsibilities of
a conciliator
• Hold meetings with each individual party to discuss how the meeting will go
• Review relevant documents and information to help reach conclusions
• Maintain a neutral position within a meeting to ensure both parties receive
fair considerations
• Allow parties involved to reach their own resolution
• Be prepared to settle disputes by issuing their own resolution, should the
parties ask
• Prepare settlement agreement documents based off of the resolution the
parties reached
• Protect confidentiality regarding the parties, their personal information and
details regarding the dispute
CONCILIATION – Cont’d
Section 63 of the ACA - Costs.
Upon termination of the conciliation proceedings, the conciliator is
mandated to fix the costs of the conciliation and give written notice of it to
the parties.
Costs relate to:
(a) the fee and expenses of the conciliator and witnesses requested by the
conciliator with the consent of the parties;
(b) any expert advice requested by the conciliator with the consent of the
parties;
(3) The costs shall be borne equally by the parties unless the settlement
agreement provides for a different apportionment.
(4) All other expenses incurred by a party shall be borne by that party.
CONCILIATION – Cont’d
59. Status and effect of settlement agreement.
The settlement agreement shall have the same status and
effect as if it is an arbitral award.
62. Resort to arbitral or judicial proceedings.
The parties shall not initiate, during the conciliation
proceedings, any arbitral or judicial proceedings in respect of
a dispute that is the subject matter of the conciliation
proceedings.
CONCILIATION – Cont’d
Section 66 of the ACA: Admissibility of evidence in other
proceedings.
The parties shall not rely on or introduce as evidence in arbitral or
judicial proceedings, whether or not such proceedings relate to the
dispute that is the subject of the conciliation proceedings—
a) views expressed or suggestions made by the other party in
respect of a possible settlement of the dispute;
b) admissions made by the other party in the course of the
conciliation proceedings;
c) proposals made by the conciliator;
d) the fact that the other party had indicated his or her willingness
to accept a proposal for settlement made by the conciliator.
Admissibility- Conciliation
The UNICITRAL Model Law on International Conciliation sets out the
following forms of communications which are protected under Article 10 of
the Law:
a) an invitation by a party to engage in conciliation proceedings or the fact
that a party was willing to participate in conciliation proceedings;
b) views expressed or suggestions made by a party in the conciliation in
respect of a possible settlement of the dispute;
c) statements or admissions made by a party in the course of the
conciliation proceedings;
d) proposals made by the conciliator;
e) the fact that a party had indicated its willingness to accept a proposal for
settlement made by the conciliator; and
f) a document prepared solely for purposes of the conciliation proceedings.
