By Dennis Brand
Conciliation is a form of alternative dispute resolution (ADR) process whereby the parties to a dispute agree to utilize the services of a conciliator, who then meets with each of the parties separately in an attempt to resolve their differences. Conciliation differs from arbitration in that the conciliation process, of itself, has no legal standing, and differs from mediation in that the parties seldom, if ever, actually face each other across the table in the presence of a conciliator.
A conciliator usually has no authority to require the presentation of evidence or call witnesses; indeed, the conciliator usually writes no decision and makes no award. However, if the conciliator is successful in negotiating an understanding between the parties, then that understanding is almost always recorded in writing, often with the assistance of the respective parties’ legal advisors, and signed by the parties, at which time it becomes legally binding.
Conciliation can be carried out by a conciliator appointed by the parties, being someone that both parties respect and consider able to bring about a resolution of the dispute. Often the parties will prefer to use a professional conciliator, being someone trained in the conciliation process, and best able to assist the parties towards a resolution. A common method is ‘shuttle diplomacy’ or ‘caucusing’, whereby the parties to the dispute are placed in separate rooms and the conciliator goes from one room to the other trying to find common ground in order to bring about a resolution of the dispute.
A variation of that method is where the conciliator asks the parties to independently list their objectives and the outcomes they desire from the conciliation. The conciliator then discusses with the parties their respective lists, requiring them to priorities the items. Thereafter he encourages them to ‘give’ on the objectives one at a time from the least important upwards, thus reducing the number of issues in dispute.
Although conciliation can be carried out by a conciliator appointed by the parties, being someone that both parties respect and consider able to bring about a resolution of the dispute, often the parties will prefer to use a professional conciliator, that is someone who has been trained in the conciliation process and is best able to assist the parties towards a resolution.
There are several organisations that provide dispute resolution services. The International Chamber of Commerce (ICC) launched its ADR Rules in 2001 to replace the former 1988 Rules of Conciliation. Under the ICC ADR Rules, the parties can choose the settlement technique they consider most appropriate.
Conciliation in the UAE
The Rules of Commercial Conciliation and Arbitration of the Dubai Chamber of Commerce and Industry provide for conciliation on the basis of the secretariat to the committee of the DCCI appointing a conciliation panel. The form of the conciliation proceeding is contained in Chapter 5: Articles 21 and 22:
Article 21
1. A party desiring Conciliation shall submit a written application to the Secretariat.
2. The application shall include a presentation of the facts of the dispute and the views of the applicant together with supporting documents.
3. The Secretariat shall notify the other party with the application of Conciliation within a period not exceeding seven days from the date of the receipt thereof. The other party shall present his views with respect to the dispute within 15 days of the date he was informed of the application for Conciliation.
4. The Conciliation Panel shall be appointed by the Committee in accordance with the provisions of Article 17 of these Rules. The parties may object to the conciliator/s within two weeks of receiving notification of his/their name/s. The Conciliation proceeding shall commence immediately after expiration of this period.
5. The Committee may request an advance payment against the costs of the Conciliation in accordance with the provisions of Part Seven of these Rules.
6. The Conciliation Panel shall study the dispute and summon the parties before it to hear their statements and each party shall attend personally or through a representative.
7. The Conciliation Panel shall bring together the views of the parties, and upon their agreement on a final formula for the settlement it shall be recorded and authenticated by the Panel.
8. The Conciliation Panel must accomplish its duties within two months of the commencement of the Conciliation proceedings, but by a decision of the Committee this period may be extended for another similar period.’’
Article 22
If the attempt of Conciliation fails, the dispute shall be considered not more pending before the Chamber and the rights of the parties shall not be affected in any manner by what was presented or written during the course of the Conciliation proceedings.
At the request of any of the parties, the Chamber shall issue a certificate stating that the dispute had been referred to it but that attempts for Conciliation failed without giving any comment or opinion regarding the subject of the dispute.
It is worth noting that, while it is said by some, that conciliation is of little benefit because of its limitations, FIDIC, when it published its 1999 ‘Rainbow Suite’ of contracts, maintained the same provision for amicable settlement in Clause 20.5 as was included in Clause 67.2 of the 1987 4th Edition Conditions of Contract for Works of Civil Engineering Construction.
Conciliation remains one of the several available forms of alternative dispute resolution; and, if the parties involved in a dispute process consider conciliation to be the most effective way of resolving that dispute, then it is a method that should be retained.
CW
