Mediation is yesterday’s news’ headline. An established alternative dispute resolution process. Some even call it an integral part of dispute resolution; describing the prefix “alternative” as passe. Today, mediation is one of the available arrows in a discerning litigator’s quiver of dispute resolution skillsets. In April this year, the Law Society rolled out its much awaited Law Society Mediation Scheme. While a fair amount has been developed on mediation, very little has been written, talked through and thought through about conciliation.
 

There are two distinct conciliation avenues I touch on in this piece. They bear no correlation or nexus to one another. But they merit consideration as future fixes.
 

The first avenue is the civil law concept of conciliation. Conciliation, as a dispute resolution process, envisions building a positive relationship between disputants. In some civil law countries, conciliation is more common than mediation. For instance, in Italy, while conciliation is typically deployed in labour and consumer disputes, Italian judges encourage conciliation of all types of dispute.
 

Like mediation, conciliation is a voluntary, flexible, confidential and interest-based process. As in mediation proceedings, the ultimate decision to agree to a settlement rests with the parties.
 

However, conciliation is fundamentally and conceptually different than either mediation or arbitration. It occupies its own unique niche in the dispute resolution ecosystem.
 

The “conciliator” is an impartial person assisting parties by driving their negotiations and directing them towards a satisfactory agreement. Unlike arbitration, conciliation is far less adversarial. It involves a diagnostic analysis to identify a violated right and seeks an optimal solution to vindicate that right. Conciliation individualizes an optimal solution. Conciliators direct parties towards a satisfactory common agreement on that bespoke answer.
 

Although strikingly similar to mediation, there are important differences between mediation and conciliation. In conciliation, the conciliator plays a direct and central role in the actual resolution of a dispute. In conciliation, the neutral third party conciliator is (and is seen as) an authority figure responsible for figuring out the best solution for parties. It is the conciliator, not the parties, who often advises the parties and develops and proposes the terms of settlement. The parties come to the conciliator seeking guidance and the parties make decisions on proposals made by conciliators.
 

At some point during the conciliation, the conciliator will be asked by the parties to provide them with a non-binding settlement proposal. In classical, facilitative mediation, a mediator, (in sharp contrast to the conciliator) will, in most cases and as a matter of principle, refrain from making such a proposal.
 

Conciliation and mediation both look to maintain an existing business relationship. These concepts indeed vary substantially in their procedures. In mediation, the mediator manages the process through different and specific stages: introduction, joint session, caucus, and agreement, while the parties control the outcome. In conciliation, the conciliator may not follow a structured process. Instead, he or she may administer the conciliation process as a traditional negotiation. This may take different forms depending on the case.
 

The conciliation process is flexible, allowing parties to define the time, structure and content of the conciliation proceedings. These proceedings are rarely public.
 

It would be apparent by now that for this process to work, the conciliator is typically a skilled and expert practitioner about the subject matter. However, unlike a neutral evaluation that entails a typically binding merits assessment by an expert practitioner, the conciliator seeks to resolve problems. When proposing a settlement, the conciliator not only takes into account the parties' legal positions but also their commercial, financial and/or personal interests. In short, conciliation is a problem-solving conclave. Viewed another way, it is (in part) a neutral non-binding evaluation. This could prove more practical than neutral evaluation that few practitioners have utilized in recent times.
 

Conciliation is used preventively as soon as a dispute or misunderstanding eventuates. A conciliator aims to stop a substantive conflict from developing. This type of conciliation focusses on the root cause of the conflict and future conflict prevention.
 

The role of lawyers is also different in mediation as compared to conciliation. In mediation, lawyers utilize mediation advocacy and proactively mediate to generating and developing innovative solutions for settlement. In conciliation, they generally offer advice and guidance to clients about proposals made by conciliators.
 

In a common law conciliation model in the New South Wales, the Courts and Tribunal Services NSW (see http://courts.justice.nsw.gov.au) conciliation is described in the following terms: