Three Surprising Facts About Conciliation

Conciliation is an alternative dispute resolution (ADR) method that allows two parties to present their sides to a neutral third-party (the conciliator), who then offers them a non-binding resolution. The parties can then accept or reject the proposed resolution voluntarily. Conciliation is a popular way for two parties to resolve their disputes while also staying out of the courts. In addition to staying out of court, conciliation may encourage both parties to be more open and communicative with one another. As an ADR, it can be used in both personal and business disputes. Here are three aspects of conciliation that may come as a surprise for those more familiar with litigation. 

Conciliation is not (quite) mediation 

Conciliation and mediation often get confused, but in most jurisdictions the two terms are usually not considered to be interchangeable. The main difference is that in mediation the mediator works with both parties to help those parties come up with an agreement that is mutually acceptable to both parties. In conciliation, however, the parties simply present their sides and the conciliator drafts a resolution that he or she considers both legally enforceable and beneficial to both parties. In both mediation and conciliation, the proposed resolution is non-binding and the parties are free to accept or reject it as they wish.

 Conciliation is not arbitration

 While in some jurisdictions conciliation is synonymous with mediation, there tends to be a much firmer line between conciliation and arbitration. One of the defining features of conciliation is that it is non-binding and voluntary. The parties do not have to accept the resolution that their conciliator proposes. Arbitration is similar to conciliation to the extent that it is an ADR that involves a neutral third-party helping two parties come to a mutually beneficial resolution. The difference with arbitration, however, is that the final resolution that the arbitrator proposes is legally binding. In other words, while both parties are free to choose whether they go into arbitration, once they have agreed to arbitration itself they must also accept the final resolution put forward by the arbitrator.

 Conciliation is conciliatory

 Perhaps this last point won’t come as a surprise, but it is worth mentioning that one of the defining characteristics of conciliation is that it does strive to create a conciliatory atmosphere. Legal disputes have a reputation for descending into contentious and acrimonious litigation and dramatic scenes both inside and outside of the courtroom. Conciliation allows parties to avoid that drama through a number of ways. For one, because conciliation takes place outside of the courtroom, both sides usually feel freer to speak their minds without worrying about “taking down” the other side. Secondly, conciliation is usually private and not a matter of public record, therefore both parties can feel comfortable being open and honest about their side of the story.

 Whether in personal or business disputes, conciliation is a potentially attractive way for individuals and groups to resolve their differences and come to a mutually beneficial agreement. Because conciliation stays out of the courtroom, it encourages dialogue, respect and openness when trying to resolve what could otherwise lead to acrimonious litigation.

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