Mediation and conciliation

An indispensable feature of our commercial trade is disputes, which often generate high costs and are time-consuming to resolve. Therefore, more often the parties to a conflict are looking for alternative methods which allow them to solve the problem faster and cheaper and often continue cooperation. 

The practice of economic trade has developed various alternative methods for resolving conflicts, which are alternative to the judicial process. These include, among others, mediation and consortia, often confused with each other. What are they and how to use them?

Mediation

Mediation is a method of dispute resolution through active and effective communication moderated by an independent mediator. Private mediation allows the parties to create relationships and manage conflicts without the participation, coercion and interference of the state, which often brings beneficial business results and continuation of cooperation. 

In the case of private mediation, the parties to the dispute choose their own mediation centre, a qualified mediator and agree on the costs of the mediation. A settlement reached with a mediator and approved by a court has the same legal value as a court judgment, so the effect of the settlement is comparable to that of a court judgment. However, a definite advantage of mediation is its predictable costs and speed of proceedings. During mediation, there is a possibility to agree on an optimal solution, work out a settlement by the parties to the conflict themselves, which additionally guarantees its later voluntary execution. 

Of course, the mediator, who moderates such a discussion and helps the parties to overcome possible impasses, has an extraordinary role to play. On the basis of its experience, it may also propose directions to the parties for a possible settlement or involve potential experts who could serve the parties with their expertise.  

What is conciliation?

In addition to mediation, conciliation is also used to resolve disputes. It is particularly popular in the USA and in European countries with well established ADR (Alternative Dispute Resolution) practice. This method is still rarely used in Poland. 

As a rule, it involves the dispute being considered by an independent conciliator or a special conciliation committee. This can be a standing committee or an ad hoc committee set up by the parties to the dispute. There is a special procedure for setting up a conciliation committee. Thus, each party to the dispute appoints its conciliators, and then the composition of the committee is supplemented by neutral conciliators in the number ensuring them a majority in the committee. No conciliation procedure may be instituted without the consent of the other party to the dispute. 

The role of the conciliator or commission is to propose a solution acceptable to the parties to the dispute, or to allow them to work out their own solution. The conclusions of the Commission are merely a proposal addressed to the parties, without any binding force. 

Conciliators control the conflict resolution process, protect against escalation, help the parties to understand the problem and analyze the consequences of different solutions. In cases of special conflicts, they can mediate in maintaining communication between the parties. The choice of solution is always up to the participants of the proceedings, while the final agreement is developed by the conciliators. Of course, as in the case of mediation, the whole procedure is confidential and the materials collected by the committee cannot be used in further proceedings without the explicit consent of the parties.

Often both concepts of conciliation and mediation are confused in Poland or their distinction causes problems in practice. It is also often heard that conciliation is to be one of the forms of mediation, distinguished by the fact that the conciliator does not directly participate in the process of agreeing on the way to resolve the dispute, and is only limited to facilitating communication between the parties by agreeing positions between them. 

According to other assumptions, the difference between mediation and conciliation lies in the fact that in mediation the mediator only has to create conditions for the parties to reach an agreement (settlement), the resolution of the dispute itself has to come from the parties and cannot be established or proposed by the mediator. In conciliation, on the other hand, the conciliator proposes to the parties a conciliatory solution to the existing situation between them, and not only alleviates tensions between the parties. He is entitled to submit a proposal to the parties for a solution to the dispute, which is not binding on the parties, and which may at any time be either accepted or rejected by them. 

It seems, however, that under Polish law, the mediator may also propose and indicate possible directions to the parties for a potential settlement. As can be seen, the fundamental difference between mediation and conciliation is that it is the conciliator or the conciliation committee that formulates the proposal to settle the dispute itself, and not together with the parties to the dispute.

Although we would define mediation and conciliation, there is no doubt that both these methods of alternative dispute resolution are much cheaper and faster than the traditional judicial process. They give the parties a sense of greater control over the dispute and its solutions. 

It seems that recourse to alternative methods of resolving conflicts is a question of the legal culture of the parties. It is also often the result of cold calculation of costs and possible previous experience in resolving disputes.