Conciliation

What is conciliation and how does it differ from mediation?

The Oxford English Dictionary defines conciliation ‘the action of mediating between two disputing people or groups.’ [1]

While this definition does portray the intention of conciliation, which is to work together to resolve issues, it is not strictly accurate as mediation and conciliation are different ways to resolve a dispute. While they both share many similar characteristics, the role of a conciliator is different to a meditator.

What’s the difference?

Conciliation is like mediation in that an independent person creates a forum to discuss issues and explore solutions. Neither a mediator nor a conciliator can express their own opinion or make a decision for the parties – their role is to help the parties to find their own way forward.

The main difference is that the conciliator has a more direct role in the resolution. While a mediator can guide the conversation, a conciliator can participate more directly in helping the parties consider outcomes. As an example, if parties agree, a conciliator could share different solutions, could explain how similar issues have been resolved or could explain what is likely to happen in difference scenarios. 

When is conciliation useful?

“I would say that almost any complaint is suitable for conciliation. At the heart of most complaints lies communication and a difference of opinion. Conciliation is an effective method to address those communication issues, explore what is beneath the complaint and find the best outcome,” says Trevor Slater, Client Director of Financial Dispute Resolution Service.

“The real benefit comes with having an independent expert in the room. The key is having a conciliator who is a subject matter expert in the industry of the dispute. This makes a real difference when reality testing options and looking at ‘what if’ situations. At FairWay, we have specialist conciliators for financial disputes and for ACC disputes as these are two very distinct areas. Our financial conciliators have in depth knowledge of financial codes and acts as well as practical insight into the financial services industry, whereas our ACC conciliators have expertise in the Accident Compensation Act and medico-legal issues,” explains Trevor.

How can I prepare for conciliation?

It really helps if parties can ‘get in the right mindset’ for conciliation by thinking about the intention behind conciliation and what they would like to achieve through this process.

Through conciliation, parties can expect to resolve the dispute on terms that are agreeable to both parties, without the need for a formal hearing where a third party (a reviewer or an adjudicator) will decide the dispute.

Using an ACC dispute as an example, for this to occur both parties need to:

  • Consider the outcome they wish to achieve, or will accept, before the conciliation takes place. It helps to draw up a summary or statement about how you see the case and references to important documents such as medical reports or other evidence.
  • Carefully listen to what the other party says and consider how it relates to your position.
  • Be open to alternate settlement proposals.
  • Be aware that the accident compensation law relevant to your dispute may be discussed at the conference. The conciliator will attempt to simplify this as much is possible, but will not be providing legal advice. All the relevant legislation is available online.

Conciliation also allows parties to address wider issues, that may not be addressed through a formal review or adjudication, for example relationship difficulties. Make sure to let your conciliator if you have any other issues that you would like to address.

What can I expect during a conciliation?

We asked Mike Dunn, Client Director of FairWay’s ACC conciliation service, to outline what parties in an ACC dispute can expect from conciliation:

“During the meeting, the conciliator will work with the parties to identify the strengths and weaknesses of each case. It may be helpful to bring others with you for support, such as a family member, friend, an expert or a representative. You can privately discuss aspects of the conciliation as it progresses with your supporters or with the conciliator present.  

 “The conciliator cannot make the parties agree on a settlement as the role is focused on assisting the parties reach an agreement. Occasionally there may be an impasse, sometimes the conciliator will suggest a compromise, a party could make a resolution suggestion or have a change of mind after considering all that has gone on in the meeting. However over 80% of cases end with an agreement of some kind,” said Mike.

As the meeting is confidential no formal record is kept of what the parties said, although some parties may request an agreed narrative or summary of facts to go on record. The main written outcomes of the session are the agreement to conciliate and any agreement that is reached during the conciliation.

“If the parties reach agreement, then this is drawn up by the conciliator and signed by the parties. Normally, this means there will be no need for a hearing. In some cases, there will be a partial agreement which relates to further steps that are needed for the reviewer to fully consider the application for review,” explains Mike.

In 2 out of 10 cases the conciliation meeting will end without any agreement, so the next step is to proceed to a formal review hearing. Even in these circumstances, you can expect to have greater clarity about how both parties see the dispute and to have greater clarity around the issues in dispute.   

Want to know more?

If you have a dispute or if you are interested to learn more about our conciliation services, get in touch with FairWay on 0800 77 44 22 or email fairwayinfo@fairwayresolution.com