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.
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