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Attributes of an Effective Conciliator

Introduction

Conciliation is a form of Alternative Dispute Resolution (ADR) Mechanism where a neutral third party, know as the conciliator, assists the disputing parties to reach a mutually acceptable resolution.

In the process of conciliation, two key requirements emerge:

Firstly, a genuine commitment from the involved parties to resolve the dispute through conciliation. Unless the parties are aligned to an amicable resolution, the process will not yield results.

Secondly, adherence by the conciliator to the highest ethical conduct and standards. The conciliator’s commitment to ethical conduct not only contributes to the overall credibility of the conciliation process but also plays a vital role in ensuring that the parties receive a service of high quality and reliability from professionals who are both trained and competent.

So, what defines the quality of the conciliator? There is no rigorous requirement of qualifications for conciliators mentioned in any statute or rules. Similar to any profession, quality in conciliation is determined by skills, knowledge and attitude. Besides general competency, parties also seek in the conciliator a personal suitability to the specific case. Predominantly, conciliations tend to succeed due to a “click” between parties, lawyers, and the conciliator.

In numerous professions, standards for quality are established by the professional group or by state regulation. Lawyers, psychologists, doctors, and accountants all adhere to their professional standards. However, for conciliation, nationally or internationally accepted standards are yet to be finalised. Not many countries have standardized requirements for conciliators or certified training institutes ensuring minimum quality, or a reliable register of conciliators who are well-trained, experienced, and periodically required to refresh their skills.

Often times, conciliators are expected to comply with the same standards required for being an arbitrator. This notion needs to be relooked.

While conciliators and arbitrators both are ADR professionals, and they share some similarities in their approach and attitudes, there are distinct differences in their roles, standards and they follow. I have attempted to list a few easy ones for reference.

Standards for Conciliators

1. Acting as a Guide — The foremost essential quality for conciliators is guiding the conciliation process in a manner that helps parties evolve their ideas about potential resolutions and settlements. The Conciliators must build a cooperative environment where parties can freely express their concerns and interests. A conciliator’s primary role should be to facilitate communication, encourage dialogue and explore possible solutions.
2. Neutral and Impartial — Conciliators must remain neutral and impartial throughout the conciliation proceedings. They should not favor any party and should be unbiased in their approach while guiding the proceedings. While being neutral and impartial is an unsaid rule in any form of dispute resolution, there are certain international statutes and guidelines which helps ensure the same. [For Instance, ICSID Additional Facility Conciliation Rule 20 specifies that the conciliators must possess high moral character, recognized competence in the fields of law, commerce, industry or finance, and be impartial and independent. The IBA Guidelines on Conflicts of Interest may serve as useful references to ensure impartiality]. The neutrality and impartiality must permeate to the written and spoken words and also in the actions of the conciliator.
3. Facilitation of Communication — Conciliators must facilitate communication between the parties and assist in identifying issues, clarifying interests, and encouraging open dialogue. This further involves adeptly receiving and conveying messages and information, impartial and active engagement in listening, rephrasing or clarifying statements, problem-solving, and guiding the parties back to a point where areas of agreement can be identified and summarized. At times, conciliation proceedings may require conciliators to display a high emotional quotient. For instance, a dispute between a trade union and a factory may have emotional elements. Therefore, conciliators must work on and hone their abilities to recognize, evaluate, and manage not only one’s own emotions but also those of others and groups. Understanding the dynamics of both inter and intra-group conflict is crucial for perceiving potential conflicts within the parties themselves and recognizing the influence of specific individuals within their respective groups. Neutral yet empathetic communication also helps in a situation where the progress in the proceedings becomes stagnant.
4. Conducting the Conciliation Proceedings in a Suitable Manner — Section 67 of the Indian Arbitration and Conciliation Act, 1996 provides conciliators with the freedom to conduct conciliation proceedings in a way that they consider fit. This allows them to customize their approach according to the specific requirements of the case. They can consider factors such as the nature of the dispute, the parties’ expressed preferences, and the urgency for a prompt resolution. Therefore, conciliators must be careful while choosing, online vs. offline, joint or separate meetings, language, time given to one party versus time given to the other party, the number of third parties who can be present etc. Overall, they must conduct the proceedings and ensure that principles of objectivity, fairness, and justice are followed at all times.
5. Confidentiality — Conciliators must maintain the confidentiality of information shared during the proceedings. Section 75 of the Act requires the conciliator and the parties to keep confidential all matters relating to the conciliation proceedings. Confidentiality extends further to the settlement agreement, except where its disclosure is necessary for purposes of implementation and enforcement. This helps create a safe space for open communication with the disputing parties.
6. Non — binding Recommendations — Unlike arbitrators, conciliators do not make binding decisions. They may offer recommendations or suggestions, but the parties ultimately decide whether to accept them. Therefore, conciliators must present “settlement proposals” and not “directions”. The proposals can be informal and it is not mandatory that they must be in writing with reasons. At the same time, conciliators must remember the objective of such proposals i.e. to steer the parties toward a resolution that adequately addresses their interests and settles the dispute.

What Should Conciliators Avoid

1. Advocacy — Conciliators play a very different role than lawyers and they should avoid adopting an advocacy role. Often conciliators tend to unintentionally represent the interests of one party over the interests of the other party or espouse a legal principle instead of “equity”. Therefore, conciliators must remember their objective of not representing the interests of either party but to facilitate a collaborative resolution. Advocacy compromises neutrality and undermines the trust essential for the conciliation proceedings.
2. Imposing Solutions — Unlike arbitrators, it is crucial for conciliators to refrain from imposing solutions on the parties. Their role is different from the role of an arbitrator and they should stick to guiding and facilitating, not dictating outcomes. Imposing solutions undermines the voluntary nature of the conciliation process.
3. Biased Behavior — Conciliators must be very careful and steer clear of any behavior that suggests bias or partiality. Fairness is the cornerstone of their effectiveness, and any perceived bias can erode the trust essential for successful conciliation. Often times, “perception” has a direct linkage to spoken or written language and the body language. Conciliators must be self-aware of how they are perceived by both parties, jointly and severally, and to ensure that neither party perceives them as biased.
4. Violating Confidentiality — Violating the confidentiality of the conciliation proceeding is a breach of trust. Conciliators should exercise utmost care in preserving the privacy of the parties, ensuring that sensitive information is not disclosed without explicit consent.
5. Lack of Cultural Sensitivity — In our diverse world, conciliators must be culturally sensitive and aware. Failure to consider cultural nuances and differences may impede effective communication and compromise the overall success of the conciliation process.
6. Ignoring Power Imbalances — Conciliators may come across cases where is a power imbalance between the parties. For Instance, a dispute between an employer and employee. In such situations, conciliators should actively address and mitigate power imbalances between parties. Ignoring such imbalances can result in an unfair resolution and hinder the goal of reaching a mutually agreeable settlement.

Conclusion

As we conclude our exploration of the roles, responsibilities and standards that must be maintained for conciliators, it becomes evident that the effectiveness of the conciliation proceedings rests on a delicate balance. Conciliators must be astute communicators, creative problem-solvers, and guardians of fairness. Their commitment to neutrality, confidentiality, and cultural sensitivity underpins the trust essential for successful dispute resolution.

While the essence of conciliators lies in guiding parties toward resolution, what they should not do is equally crucial. Advocacy, imposition of solutions, biased behavior, and breaches of confidentiality compromise the integrity of the process. A conciliator’s success hinges on the ability to navigate these challenges with finesse, ensuring that the disputing parties actively participate in crafting their own resolution.

In the complex realm of conflict resolution, conciliators stand as beacons of impartiality and facilitation, illuminating the path toward harmony. By embracing their roles with integrity, empathy, and skill, conciliators contribute to the cultivation of a culture where disputes are not merely resolved but transformed into opportunities for collaboration and understanding. In striking this delicate balance, conciliators emerge as catalysts for positive change, steering the course toward resolutions that endure and foster lasting harmony.