Conciliation: another form of ADR, that is effective and cheap!

NADRC (National ADR Council) defines Conciliation as, A dispute resolution process, where the Conciliator, acts as an advisory to the disputing parties and the outcome of the dispute but not be determinative of the same. (As referred in Resolution Institution)

A Conciliator is a combination of mediator, collaborator, negotiator and an arbitrator. However, he/she does not have any legal rights as an arbitrator to enforce his judgement in the dispute resolutions. He/ she actively takes part in the negotiations but don’t remain as not as neutral as a mediator.

A conciliator recognises the disputes, marks the agenda, actively motivates the parties to compromise and work on fair outcome.

In some cases, where the conciliation is advised by a statue, the conciliator must ensure the outcome adheres to the respective laws and that the outcome is enforced.

The Institute of Arbitrators and Mediators Australia, has laid down some rules for Conciliators. Here are they for your easy read, so that you are informed when you seek such service.

Conciliation and Conciliators

 

  • The conciliation is a process that involves negotiations, finding a middle ground, drawing expert advice from the conciliator, knowing the consequences of the decisions, and being advised on legal implications.
  • The conciliator must be highly knowledgeable and adept at dealing with various kinds of personalities and emotionally charged situations, to offer conciliation services.
  • Either the couple can choose a Conciliator or agree to work with a Conciliator appointed by the institute.
  • The couple seeking conciliation services for out-of-court settlement can be satisfied with the fact that like mediation services, the conciliation services too are bound by confidentiality clause. And cannot be disclosed unless ordered by law.
  • The Key difference between Mediation and Conciliation is, in Conciliation Meetings, the parties themselves or their representatives may carry out the discussion. Unlike, mediation where parties must be personally present.

    Termination of the Conciliation Agreement

     

    Just by signing the written document and intimating the other parties and the Conciliator, the conciliation can be terminated.The Conciliator cannot switch roles and act as an arbitrator, if the couple cannot agree on an outcome and the conciliation efforts are not getting anywhere.

    Separation and Conciliation

    Having explained what is conciliation and how it works, I feel conciliation is quite suitable for the couple who are looking for peaceful resolution along with some push from an authority. The couple also gain from the timely advice by the Conciliator to act on it and use it in arriving at mutually satisfying outcome.

    Since the Conciliator is bit of everything, the couple can take advantage of practical outlook, skilful mediation and shrewd decision making.

    The conciliation services can be provided by a professionally trained practitioner or a family or divorce lawyers specialised in alternative dispute resolution.

    The family courts provide Registrars as Conciliators to service separating couple.

    The alternative dispute resolutions provide quick solutions in less cost and time. Mediation, conciliation, collaborative law and arbitration are different means of ADR. Try them in your tough times of life (separation and divorce) for smooth transition of both of you and your children.

    Check out the video below to know more about ADRs:

    https://www.youtube.com/watch?v=WhwXv9qc7rw

How Arbitration Helps in Separation and Divorce& Difference between Arbitration and Mediation

Arbitration, means, third party reviewing the case and evidences and impose its decision on the parties. The award, an arbitral tribunal’s decision, is enforceable by law.

Arbitration reduces the cost, time and stress considerably.

 

The attorney General of Australia has authorised private arbitration system, that is divorce lawyers specialised in arbitration, to service the divorce cases. The private arbitrators can arbitrate almost all the divorce related issues between the couple, except matters related to children. The issues surrounding children like custody, parenting responsibility, child care, child maintenance is heard by the court of law.

The good thing, I would like to suggest to the divorcing couple here is, they can choose the arbitrators. They can choose their own independent, private arbitrator or someone advised by the court. Just like you do your homework, compare and then decide on something before buying something, individuals are free to do so while selecting arbitrators as well.

Look out for professional, confident and informed arbitrator, who can understand your circumstances and decide unbiasedly based on facts and figures.

The fees arbitrators charge varies from case to case basis. I would suggest, feel free to window shop the arbitration services of few practitioners, before settling one for your case. This way you will also know how comfortable and confident you can be on your arbitrator’s judgement.

Difference between Arbitration and Mediation

 

Frequently, I come across couple, who understand ADR but with lots of questions on how they work (for them my earlier post is recommended). They often confuse mediation with arbitration. Though both are forms of ADR and aid in out-of-court settlements, they are not the same.

Here’s how:

  • Mediator is more like a counsellor! He/she cannot impose their judgement on the couple. Mediator can only steer the discussion, if it is losing track, to arrive at acceptable solution to the couple disputes. If the couple cannot agree to a solution, the mediator cannot do anything.

Whereas, an arbitrator’s duty is to validate the evidences and arrive at a judgement. An arbitrator must be decisive.

  • Mediation process is non-binding and only facilitative in nature.

Arbitration, on the other hand is generally, binding and determinative. The purpose of arbitration process itself is to draw a feasible solution based on evidences and arguments of the parties. A slight deviation from the arbitration process is non-binding arbitration, that is more like mediating but with an intention to pass the judgement and its implications. However, they are not binding on the parties.

I would not want to call non-binding arbitration as arbitration at all. As arbitration necessarily means ruling a binding judgement.

  • The mediator must maintain confidentiality and cannot indulge in facts weighing.

An arbitrator does the exact opposite of this! He should weigh the facts and draw conclusions.

Mediation and Arbitration are 2 different processes with different purposes.

Some people, opt for mediation and think if it doesn’t work, they can ask the mediator to settle things for them! Well, that is for the Mediator to decide if he/she is comfortable switching positions and rule fair award.

 

As I have witnessed people going through arbitration process, I can list some benefits and limitations of arbitration process:

Benefits

  • Arbitration is cost effective than divorce and settlement filing in court.
  • Since the set up and the procedure to arriving at the judgement is similar, the parties can be confident that they will have fair judgement.
  • The arbitration process can be kept confidential, if the parties desire so.

Limitations

  • Whatever said and done, an arbitral tribunal too can pass erroneous judgement, which is not easily revocable.
  • If there are many arbitrators on the arbitral tribunal, the judgement can be delayed.

I thought you many like to see this clip, a visual form of what I explained above! Have a look:

https://www.youtube.com/watch?v=TfT1bgsyYGM

How Dispute Resolution Process Works?

Official Website of AG Department of Australia  gives alternative dispute resolution working models very clearly and in uncomplicated way.

 

Basically, an alternative dispute resolution involves a third person/ a party to negotiate and find a middle ground for the divorcing couple to discuss about sharing their parental responsibility, settling finances and planning for future requirements.

 

Once the decision of divorce is done, it is better if the couple start looking and planning for the future rather than harbouring bitter feelings towards each other. It is easier said than done! I know!

 

Let me explain the above infographic for you.

 

Requisites of Dispute Resolution Process

 

Dispute Resolution necessarily must have willing parties to negotiate and work their way out peacefully. The dispute resolution starts with identifying the demanding issues for the family. Both the parties should be sensitive about each other’s needs and talk respectfully. With time frame set to resolve issues, the dispute resolution process is completed when the solutions are worked out, voluntarily by both the partners.

 

Negotiation

 

The negotiation must have a someone like a family lawyer who can negotiate on his/her client’s behalf with his/her partner. This arrangement helps when both the parties are eager to work out details but are not on good terms with each other.

 

Facilitative Dispute Resolution

 

In facilitative dispute resolution, the third party, remains neutral and all he/she does is to navigate the discussion between the parties. The mediator here, does not influence the discussion nor the outcome of it.

The advantage of facilitative approach is the parties are free to discuss their priority issues and seek assistance from the mediator only when they are stuck with some issues.

This I have noticed gives the couple a sense of control over what’s happening. This, in most of the circumstances ensure better outcome and relationship even after divorce between the couple.

 

Advisory Dispute Resolution

 

A step ahead of facilitative dispute resolution is advisory dispute resolution.

This mode of dispute resolution offers expert advice and guidance to the couple so that they can take informed decisions. Though, the decision is not forced, the process of course is influenced in many ways; either by giving advice, assisting in listing of facts or prioritising the issues.

The third party / parties play active role in the dispute resolution and take the couple through the resolution sessions with lot of inputs and assistance.

Determinative Dispute Resolution

 

If the couple need some stringent set up to make their headway through divorce, but not necessarily court; determinative dispute resolution is the best option.

In this approach, the practitioner or arbitrator, listens to the both sides of the parties, with evidences, if required and settles the dispute by providing his/her opinion as the solution to the dispute of the partners.

All the approaches to the alternative dispute resolutions prove to be effective in some specific circumstances and must be chosen wisely by the parties that suits their needs.

I hope my explanation of dispute resolution process and its modes of approach were simple to understand. And help demystify the concept of out-of-court settlement.

You may like to check this video out, to know more about dispute resolution services. I insist, you see the video fully:

http://www.vea.com.au/secondary-school/alternative-dispute-resolution.html