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1. What is it?
Conciliation is a process similar to mediation whereby the conciliator seeks to facilitate a settlement between the parties. In Ireland conciliation is rarely availed of except in respect of construction industry disputes. Under the industry defined procedures for conciliation, the conciliator is obliged to issue a recommendation for the resolution of the dispute if the parties fail to reach settlement
2. How does the process work?
Conciliation usually arises out of a clause in a construction contract whereby the parties agree to attempt to resolve their dispute through conciliation. The clause provides for the conciliator being appointed by the agreement of the parties or by a specific institution.
The RIAI and Engineers Ireland publish conciliation procedures, one of which will generally apply. These procedures provide for opening statements being delivered within a short period of the appointment. A hearing usually takes place for the purpose of concluding the conciliation shortly after these opening statements are delivered.
The conciliator will attempt to facilitate a settlement between the parties. If this cannot be achieved he will publish a recommendation setting out the basis on which he believes the dispute should be resolved.
3. Appropriateness of Conciliation to a dispute?
In theory there is no reason why conciliation cannot be availed of in relation to almost any dispute apart from family or similarly sensitive issues in respect of which mediation may be more appropriate. In practice however conciliation is rarely availed of in Ireland except in relation to disputes in the construction industry.
4. Industry Suitability to Conciliation
This form of conciliation is peculiar to Ireland and is the creation of the construction industry. It is almost exclusively used within that industry. Outside of the construction industry, mediation (which does not involve any form of recommendation), is more commonly availed of for dispute resolution.
5. Time and Cost
Under the Engineers Ireland conciliation procedure, the conciliator is obliged to conclude the process within forty-two days of his appointment unless the parties agree otherwise. There is no overall time limit specified in the RIAI procedure but conciliations under that procedure are usually concluded within two or three months. It very much depends upon the approach of the individual conciliator.
The usual practice is that each party bears its own costs and pays one half of the conciliators fees irrespective of the outcome. Compared with Court Litigation or Arbitration, the cost is relatively small.
6. Final & Binding
If the parties reach settlement, that settlement is reduced to writing and signed on behalf of the parties. It then becomes final and binding. If settlement is not achieved, and the conciliator issues a recommendation, that recommendation will become final and binding as between the parties unless one of them rejects the recommendation within a specified number of days.
The conciliation procedures of the RIAI and of Engineers Ireland provide that if the conciliator’s recommendation is rejected, the entire procedure is to be regarded as confidential and neither party can refer to anything that occurred in the conciliation or call the conciliator as a witness in any proceedings.