David Carrick relates his experiences as a conciliator
Conciliation can mean a variety of different processes distinguished from each other by detail. For our present purpose let us consider conciliation under the 1994 Institution of Civil Engineer's Conciliation Procedure.
The process consists of two-stages. The first stage is very akin to mediation. The Conciliator meets with the parties in an endeavour to bring them together in a mutual agreement resolving their dispute. If the conciliator fails to achieve this primary objective the next step is very similar to adjudication. A recommendation is made by the conciliator which is binding upon the parties unless they decide to proceed to arbitration or such other tribunal as their contract prescribes.

Let us look at the procedure in more detail. If it is used in certain ICE contracts it may be incorporated by the express provision, eg ICE 6th. Here the contractor must first ask for an engineer's decision. Either the employer or the contractor may then take the matter to conciliation by serving notice on the other. Where the procedure is not expressly incorporated into the contract, in other words it is adopted on an adhoc basis by the parties, then each side simply enters into a conciliation agreement as a first step. I have been involved in several conciliations using the ICE 6th Form of Contract where the parties have agreed not to request an engineer's decision first and by consent, go straight to conciliation. Fortunately this has worked in both instances. There is of course a danger if the conciliation process does not end up in a settlement or an acceptable award. The danger is that the party feeling aggrieved goes back to the beginning, ask for an engineer's decision and then takes it to a second conciliation. Whilst this all seems a bit pointless it could be used to procrastinate.

The ICE Procedure comprises a preface, the conditions under which the parties and the conciliator enter into a contract and an agreement. The ethos of the process is set out in Rule 2 in the following terms "This Procedure shall be interpreted and applied in the manner most conducive to the efficient conduct of the proceedings with the primary objective of achieving a settlement to the dispute by agreement between the Parties as quickly as possible." This allows the conciliator extremely wide powers to conduct matters virtually without limit or hindrance. Provided the parties have chosen their conciliator wisely, this is a real plus point for the process. Remarkably the conciliator's award, if he or she requires to write one, is governed by Rule 16 in the following terms "The Conciliator's Recommendation shall state his solution to the dispute which has been referred for Conciliation. The Recommendation shall not disclose any information which any Party has provided in confidence. It shall be based on his opinion as to how the Parties can best dispose of the dispute between them and need not necessarily be based on any principles of the Contract, law or equity. The Conciliator shall not be required to give reasons for his Recommendation. Nevertheless should he choose to do so, his reasons shall be issued as a separate document, within 7 days of giving of his Recommendation". I do not think it is unreasonable to assume that the laws of natural justice would also be impliedly incorporated.
Of vital importance to the process is confidentiality. To date I have been involved in more than twenty conciliations with a significant number being under the ICE Procedure. In the vast majority I have managed to effect a complete settlement. In a few instances we have achieved partial settlement and have later heard from one of the parties that other matters were settled by negotiation at a later date. None have proceeded to arbitration. In order not to sound too boastful I believe this is a product of the process rather than of my appointment.

Let us consider a typical conciliation. Having been appointed I usually invite the parties to send me a brief statement of their point of view and the matters in dispute. This is copied to the other party. Usually this focuses the matters in dispute, but on occasions it would appear that parties were talking about different contracts! If the matter is a complex one then it may be advantageous to have what amounts to a preliminary meeting. During this meeting it is useful to set out a timescale, venues and any procedural matters. On one occasion a settlement was effected at such a meeting - this being quite exceptional.

Regardless of whether or not such a meeting takes place I like to have a fairly formal start to the conciliation proper. I normally ask the parties to introduce themselves and to explain their role in the dispute and within their organisation. Usually I request a short verbal statement from each party explaining their dispute. There then follows two vital steps. The first is to explain the rudiments of the process to the parties together with an explanation of the procedure which we will be adopting for their conciliation. The second, and arguably the more important, is to ascertain with total clarity and understanding that the parties' representatives have the authority to settle the matter. If either or both the parties don't then the conciliator faces his first decision. Generally, if the parties have authority to take the matter virtually to an agreement but require a final rubber stamping by someone who is contactable by telephone at short notice, it may be appropriate for the conciliation to continue. It is much more difficult if the matter needs to be referred to a Board of Directors or to Partners. I invariably have a notebook computer and portable printer with me so that when an agreement is reached it can be set down on paper and executed on the spot. I have yet to abandon a conciliation at this first hurdle but if one of the parties was simply not in a position of authority I would seriously consider doing so.

Generally I will then meet with each party in private. During these private caucuses the parties will divulge information which remains completely confidential to that party and to myself. Nothing of this discussion will be conveyed to the other party unless I have the express, unambiguous agreement of the party concerned. At the end of each caucus I invariably summarise what has been told to me and what of that I am at liberty to take back to the other party. That of course doesn't mean to say I will inevitably do so immediately.

The conciliation then proceeds interspersed by individual caucuses or communal meetings as circumstances demand. The usual philosophy of breaking large disputes into several smaller disputes works well in conciliation, if it is possible to do so. It is very comforting to get early agreement on some preliminary point between the parties thus providing a foundation for more comprehensive agreement. None of these meetings are taken under oath or affirmation and the parties may or may not be legally represented as they choose. I must confess to have being somewhat nervous when I first encountered a conciliation where the parties were legally represented. However, my fears were groundless and the solicitors involved very much entered into the spirit of the conciliation but of course looked after their client's interests.

Although I have yet to face the situation, there may come a point where it is so unlikely that further movement can be achieved that an agreed settlement will be impossible. It would be callous and pointless for the conciliator to press on when there is plainly no hope for an agreed settlement. The art, as opposed to the science, of conciliation is to know when further probing is needed and is likely to be effective. A party saying "no" might well be saying "no under these circumstances".
There is no prescribed method by which the parties are brought to a final settlement. Sometimes the conclusion is surprisingly quick with a small number of pivotal agreements coming together as whole. On other occasions the process seems to be inordinately piecemeal with every single issue requiring detailed attention from the conciliator.

In conclusion it is difficult not to compare the process with adjudication, mediation, litigation or other forms of ADR. My experience suggests that it is very effective but I must stress that this has always been under circumstances where the parties have had a keen desire to resolve the matter in contention. There are those who would criticise the process insofar as it can be used by the party with the money to keep it a little longer. Any process is prone to this kind of procrastination and I do not think it is realistic to level it against any non binding process. Compared with arbitration, in my experience, the costs have been a tiny fraction of what the parties might expect in an arbitration. Speaking as a Scottish arbiter, I have frequently yearned for the opportunity of getting my sleeves rolled up and getting to grips with the real issues in contention. Therefore, under the right circumstances, I would commend the process to parties who genuinely wish an assisted settlement but would feel comforted with the fallback of a recommendation.