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  Conciliation is the process whereby the third party (known as the conciliator)  in the settlement process is the one to reach a non-binding decision on behalf of the parties, having carefully listened to the facts of the dispute.
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The Conciliation Agreement

Where the parties to an agreement intend that any dispute which may arise therefrom be resolved by conciliation, all they need to do is to insert a conciliation clause in their agreement. Sometimes, it may be agreed that the conciliator or mediator be appointed by a special body or person. Furthermore, provisions may be made for the dispute to be referred to arbitration in the event of failure of conciliation or mediation. Conciliation can be adopted to resolve different types of disputes, including commercial disputes, family disputes, community and neighbourhood disputes, and international disputes.

The Conciliator

  • Appointment
Conciliators are usually one or three, and they are to be appointed as follows:
  1. In the case of one conciliator, jointly by the parties,
  2. In the case of three conciliators, one conciliator by each party, and the third conciliator jointly by the parties.
The parties are expected to reach an agreement on the names of the conciliators. The parties are also allowed to enlist the assistance of an appropriate institution or person in connection with the appointment of conciliators. Such an institution or person may be requested to recommend the names of suitable individuals to act as conciliators, or the parties may agree that the appointment of one or more conciliators is made by such institution or person.
  • Role And Functions Of The Conciliator
The main aim of a conciliator is to promote a settlement between the parties within a less formal structure. Nevertheless, it is possible to identify certain roles of the conciliator which are expected in the discharge of conciliatory functions.
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Some of these are:
  1. To Encourage Dialogue: the conciliator is expected to ensure that the parties communicate with each other in an effort to resolve their dispute. When there is a dispute, parties may be unwilling to listen to each other or even to communicate with each other, so it is the job of the conciliator to ensure that the parties communicate effectively and that their communications are geared towards resolving rather than intensifying the dispute.
  2. To Pass Information Between The Parties: the conciliator is expected to provide relevant information from one party to the other, especially where the information is relevant for the resolution of the dispute or for the clarification of issues. This role is closely linked to the conciliator’s freedom to disclose, which allows the conciliator to disclose information provided to him/her by one party to the proceedings by making such information available to the other party. It should be noted that this is not absolute freedom, and the conciliator may be restrained from disclosing information where he/she has been expressly instructed by any of the parties not to disclose certain information.
  3. To Inform And Educate The Parties About The Conciliation: the conciliator helps the parties understand and prepare their position. The conciliator is allowed to assist the parties in preparing their case, as long as he/she helps both parties and ensure that they work towards an acceptable resolution of the dispute.
  4. To Facilitate A Settlement Of The Dispute: this is the main aim of a conciliator. The conciliator must make every effort to encourage the parties to resolve the dispute in a manner that is acceptable to all involved.

Procedure For Conciliation

  1. The party initiating conciliation sends to the other party a written invitation to conciliate, briefly identifying the subject of the dispute.
  2. Conciliation proceedings commence when the other party accepts the invitation to conciliate. If the acceptance is oral, it is advisable that it is confirmed in writing.
  3. If the other party rejects the invitation, there will be no conciliation proceedings.
  4. If the party initiating conciliation does not receive a reply within thirty days from the date on which he sends the invitation, or within such other period of time as specified in the invitation, he may elect to treat this as a rejection of the invitation to conciliate. If he so elects, he informs the other party accordingly.

Conclusion

From the above, we can see that the conciliation proceedings are based on the consent of the parties. Both parties must consent to the adoption of conciliation for the resolution of their dispute or else the proceedings will not commence. No party can force the other to enter into conciliation proceedings, even where there is an agreement to the effect that conciliation will be employed by the parties in the resolution of their disputes. Once the request to conciliate is accepted by other parties, the conciliation proceedings are deemed to have commenced. Once the conciliation proceedings commence, the parties appoint their conciliator(s) in the manner agreed by them. Featured Image Source: Dreamstime
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This article was first published on 20th April 2021

foluke-akinmoladun

Foluke Akinmoladun is the Managing Solicitor of Trizon Law Chambers. She has been a legal practitioner for 13 years and has experience in a wide range of commercial matters. She is a certified mediator, a member of the Chartered Institute of Arbitrators(UK), holds an Advanced Diploma in Accounting from the Association of Chartered Certified Accountants (UK) and is also a tax consultant. She is a dispute resolution expert, handling commercial disputes from negotiations all the way to litigation (if need be).

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