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July 2007: Why Mediate when Conciliation will do?

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Why Mediate when Conciliation will do?

Conflict in business and between people is a day to day reality.  But the way conflicts are resolved is changing as alternatives to negotiation and litigation are finding favour and being encouraged by the Courts. 

Talking to litigators and employment law specialists we know there’s limited use of mediation at the moment and some concern that it’s not really very different from conciliation.  Human Law Mediation disagree.  Whilst we know there’s a place for conciliation we firmly believe that mediation is a much more powerful and robust tool in the dispute resolution armoury.  Here’s why.
Conciliation is well known to employment lawyers and those with experience of the Employment Tribunal system due to the fact that when an employment claim is made the parties have access to ACAS’s free tribunal service.

To date mediation has not been as widely used within employment law circles but what exactly is the difference between the two?

First of all let us consider conciliation.

Both the employer and employee have to agree to conciliation before it can happen and from the employment law perspective, conciliation normally happens on the telephone.

A conciliator will normally be there to encourage the two sides to come to an agreement and will help by:

  • Talking through the issues with each side
  • Explaining the legal issues involved
  • Looking at opportunities for settling the case

A mediator will do all of these things but will also do more.

Where Mediation Exceeds Conciliation
A crucial difference is that unlike conciliation, the mediator is an active participant in the process. In contrast to conciliation which often happens on the telephone, mediation is an in person activity where after having an opening session with all the parties present, the mediator shuttles between the parties in person to clarify the issues and seek the basis of an agreement.

The mediator will seek to help the parties come up with empowering solutions whilst in conciliation the conciliator will do what the parties tell him or her. Therefore the mediator has a potentially far greater role. 

The mediator will not only seek to understand the issues they will also try to explore what is really underpinning the dispute. As a consequence the process is far more insightful than conciliation. A good mediator can probe underlying reasons behind the dispute and use this as a way of creating long lasting settlements. and often assist a party in defining their conflict in alternative ways that allow them to perceive its deeper, more accurate meanings.

Mediation involves far more interaction with the parties than conciliation and more work from the mediator, and as a result it is a path, which seeks to lead towards transformation in a dispute, which can achieve far more than conciliation in bringing about a genuine resolution for all parties.

As mediator, Kenneth Cloke observes in the work of the mediator, “Through these efforts, we can assist less-empowered parties to become more productive, intelligent, and successful in completely ending their conflicts by addressing the underlying reasons that created them. In the long run, we will end disputes quicker with less damage and at lower cost than if we push for compromise, conciliation, and settlement for settlement’s sake.”   

Therefore whilst conciliation can lead to a settlement of a dispute, mediation can lead to a transformation in the perception of the dispute and lead to complete closure.

For more details about mediation and how it can be used in a range of business and employment disputes visit the new Human Law Mediation website or call Justin Patten on 01920 462202.

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Making Mediation Work
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