By Mervyn Lin
The rise of alternative dispute resolution (ADR) in the legal sector cannot be understated. Offering greater autonomy, flexibility, and cost-efficiency in tackling disputes compared to litigation, it is no surprise that more and more parties are utilising ADR mechanisms. Recognising this shift in the legal landscape, the Singapore courts have begun promoting different forms of dispute resolution to suit the specific needs of disputants. As of 1 April 2022, the courts have officially recognised conciliation as the latest ADR mechanism which parties may opt for.
Conciliation is a form of dispute resolution where parties elect a neutral third party (i.e. a conciliator) to aid in arriving at a mutually agreeable settlement rather than going to trial. But hold on, does this not sound strikingly similar to the established practice of mediation? In fact, the Singapore Mediation Act also barely differentiates the two processes. Yet, while both processes are rooted in similar concepts, each aims to aid parties through fundamentally different means. This post will clarify the similarities and differences between the two in Singapore’s context.
Let's begin with the similarities:
(1) Amicable Nature
Both conciliation and mediation are amicable in nature and are grounded in preserving relationships. They aim for win-win solutions which preserve the parties’ relationship whilst effectively resolving the dispute at hand.
Both processes are flexible in nature. They are able to formulate and implement solutions which would simply be impossible for the courts to do effectively.
(3) Third Party Present
Both processes involve an elected third party to aid the parties in reaching a resolution to the dispute. In conciliation, this third party is known as the conciliator. In mediation, the third party is known as the mediator.
(4) Party Autonomy
Parties can choose to use either process if all other parties agree to it. Parties in both processes get the final say as to whether the solution arrived at is satisfactory for their cause, i.e. no solution is binding unless all parties agree to it, and the success of the process rests largely on them.
Both conciliation and mediation are confidential in nature. This means the discussions between parties during a conciliation or mediation session will be confidential. If parties reach a settlement, they may also decide to keep the details of what they have agreed to confidential.
Now although similar in many ways, there is one key difference between the two processes – the role of the third party.
In a mediation, a mediator is there to facilitate and guide the parties through the discussion. The mediator manages the flow of the conversation, and aids the parties in identifying and articulating their underlying interests. Ultimately however, the parties will discuss the issues between themselves, before brainstorming and arriving at any possible solutions. At its core, mediation is still a party driven process.
In a conciliation, a conciliator is there to not only guide the conversation, but also to play an active role in sharing advice and possible solutions to the dispute at hand. The conciliator will lend their expertise in evaluating the situation and plays a more direct role in generating solutions to resolve the dispute. Parties therefore play a more reactive role in conciliation, building on and refining suggestions provided by the conciliator, although they are still in control of whether to settle the dispute and the specific details of their settlement.
In practice, conciliation is a suggested follow up to mediation in situations where parties are unable to suggest and arrive at satisfactory solutions. Allowing the third party to play a more active role in the discussion may lead to the discovery of new solutions that may not have been contemplated in the preceding mediation.
Now that you know what the similarities and differences between mediation and conciliation are, you can better choose the process more suited for your own unique circumstances. Make your choice wisely!
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