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Alternative Dispute Resolution is the resolution of disputes between two or more parties outside the Court. There are various alternative dispute resolution methods and the most popular are the ones of arbitration, mediation and conciliation.
The main reasons for using alternative dispute resolution methods are because they are faster, cheaper and confidential.
The possibility of resolving a dispute alternatively is made possible when:
- The parties agree prior to the dispute arising, for example through an arbitration or mediation clause.
- The parties agree after the dispute has arisen. This may occur for example where the parties are already at the court or before going to the court.
- It is imposed by Law. An example is the restructuring of loan facilities.
What is mediation and reconciliation?
Two types of Alternative Dispute Resolution are Mediation and Conciliation. Both of these methods are informal ways of resolving a dispute where the parties entrust the resolution of their dispute to a third party called a mediator or conciliator (as the case may be).
Conciliation can also be considered as a type of mediation since it falls under the interpretation of Law 159 (I)/2012 on Certain Aspects of Mediation in Civil Disputes Law of 2012 as a:
“… structured process, however named or referred to, whereby two or more parties to a dispute attempt by themselves, on a voluntary basis, to reach an agreement on the settlement of their dispute with the assistance of a physical person called the “Mediator”
Differences between mediation and conciliation?
Although conciliation can be considered as a form of mediation, there are differences. The most important of these is that the role of the conciliator is more direct as he/she tries to lead the parties to a resolution of their dispute by proposing solutions and options. In mediation, the mediator does not propose solutions to the parties – he lets them settle the matter on their own.
A disadvantage, the fact that the conciliator proposes solutions may give the impression that he is not impartial as it is possible for one party to disagree with the proposed solution or to consider it to be unfair.
Also, in conciliation the parties usually rely on the conciliator to suggest solutions. For this reason, the conciliator is usually someone with experience in the specific area of the dispute.
Finally, the mediation process is divided into specific stages such as opening, exchange, separate conversations and the agreement. Conciliation may follow a different process.
This article is co-funded by the European Union’s Consumer Program (2014-2020).
