CONCILIATION

Conciliation is a confidential and privileged dispute resolution process which takes the form of a structured settlement negotiation carried out between the disputing parties by an independent third party called the conciliator. The aim is that the parties achieve a settlement themselves in the allocated time (usually 56 calendar days, but this can be extended by agreement) and failing agreement between the parties, the conciliator issues a recommendation containing a resolution. The recommendation is usually binding unless either party rejects the recommendation within a pre-determined period (usually within two weeks of the date of issue of the recommendation). To the extent that the conciliator will make a recommendation, the process is an evaluative process. Where the parties settle the matter without a recommendation, the settlement is normally drafted and executed as a discrete agreement collateral to the underlying contract between the parties.

After appointment the Conciliator will take charge and manage the process and will require the Parties to send him/her details of the dispute, and the remedies sought, which will be circulated to the other Party. However unlike an arbitrator, the conciliator is free to meet with the parties separately and to receive confidential information from either party. The conciliator cannot reveal any confidential information as between the parties unless he/she is authorised to do so by the revealing party. The conciliator normally convenes a meeting day(s) with both parties, the purpose of which is to reach an agreed settlement. During this meeting day(s) the conciliator meets the parties jointly and separately while maintaining confidentiality at all time.

While the process of conciliation is usually allowed for in the underlying contract between the parties, the process is voluntary and either party can walk away from it at any stage thereby bringing the process to a conclusion. It is a confidential process carried out on a without prejudice basis, meaning that any document, correspondence or information exchanged or obtained during the process are not admissible in subsequent proceedings (if any). The parties normally bear their own costs and share the conciliator’s costs equally (unless the conciliator recommends otherwise).

In Ireland conciliation as provided for in Clause 13 of the suite of public construction works contracts under the Capital Works Management Framework (CWMF), under clause 38 of the RIAI standard form of construction contract, and under contracts issued or published by Engineers Ireland. Conciliation may also be provided for under bespoke construction contracts.