ADR - Conciliation Flashcards
What are the positives of conciliation?
Conciliator usually an expert
Private
Flexibility
Conciliator can give advice
What are the negatives of conciliation?
Not legally binding if no agreement reached
Too informal
Imbalance of power
No appeals or legal aid
Conciliator is usually an expert - why is it a positive - P-DEV-E
The third party conciliator will usually have some expertise in the specific topic area – which will sometimes include legal knowledge, such as for ACAS employment tribunals. This ensure the decisions made abide by legal principles.
However, there is no requirement for a conciliator to have this legal knowledge, and therefore there is a risk of decisions being made against legal principles or the law being misunderstood and misapplied.
Private - why is it a positive - P-DEV-E
The process of conciliation takes place in a private setting, which ensures parties legal issues are not made public and there is therefore no risk of damage to reputation.
However this can lead to a lack of transparency which can always be damaging and risk abuse of the process and unfair treatment of parties.
Flexibility - why is it a positive - P-DEV-E
Conciliation allows parties to choose a time and date that suits them, as well as determining the exact process that works for them too. This flexibility can increase parties faith and engagement in the process too.
However some parties may feel that a lack of precise processes leaves them unsure of the best way to proceed with their case, and they may be more likely to be exploited by another party.
Conciliator can give advice - why is it a positive - P-DEV-E
This helps as it means that conciliation is still a suitable method, even where parties are entrenched and struggling to find compromise. This is because the conciliator can suggest outcomes that help the parties reach agreement.
However, there is a danger that this then leads to an outcome which is not what the parties want, as they may feel pressured into agreeing to what the conciliator suggests.
Not legally binding if no agreement reached - why is it a negative - P-DEV-E
If parties are unable to communicate with one another, they will not be able to reach an agreement and will be left without having made any progress – and may still need to go to court. This makes the conciliation process worthless.
Additionally, even if an agreement is reached, it will usually need to be drawn up by a lawyer, and the cost of this can take away from the benefit of using ADR originally
Too informal - why is it a negative - P-DEV-E
The process is seen as very informal and this may lead parties to not take process seriously, which will result in outcome which are either unsuitable, or no outcome at all. This renders the process worthless.
However, the informal nature of conciliation can be a comfort to parties who want to avoid the confrontational nature of the courtroom, and may encourage better communication.
Imbalance of power - why is it a negative - P-DEV-E
Sometimes the parties may be imbalanced in terms of their communicative powers, and this can lead to a ‘stronger’ party who may bully or manipulate a ‘weaker’ party. This is especially concerning in family law cases where there may be a history of control.
However the conciliator is present to facilitate discussions, and the whole process will still be better for some than facing the other party in court.
No appeals or legal aid - why is it a negative - P-DEV-E
The lack of options for appeals from conciliation decisions mean that parties could be left without a means to challenge an unfair decision, which leaves them in a worse position than they would have been in before conciliation.
In addition, the lack of legal aid given to take cases to conciliation means that they will need to pay out for the process.
