Mediation and conciliation are fast-track processes aiming at settling the dispute between the parties in a meeting in the presence of a mediator or conciliator. Under the rules of the Arbitration Board it is possible to resolve a dispute in less than one month. The parties must therefore be prepared to work to short time limits, including the time limits applying to nomination of a mediator and the fixing of meeting dates.
Experience gained in other countries shows that mediation and conciliation often result in a settlement, which means that the dispute between the parties is resolved much faster and at lower cost. The parties save time as well as resources for preparation of arbitral proceedings and associated documentation, and they save the costs of legal counsel and the actual arbitral proceedings.
In mediation, a mediator presides over the proceedings and assists the parties through dialogue, but the mediator may not present any proposals for settlement or advise the parties of the likely outcome of arbitration if the case is referred to arbitration. The purpose of mediation is to allow the parties to clarify their points of dispute, positions and interests and to enable them to agree on an acceptable outcome. Mediation is a useful procedure after which the parties will be in a better position to continue their working relationship and to find solutions that go beyond purely legal aspects.
A conciliation procedure is different. The conciliator presides over the proceedings and assists the parties through dialogue, but may also present proposals for settlement and advise on the likely outcome of and the uncertainties associated with arbitration.
The mediators and conciliators that the Arbitration Board use have an educational and professional background that qualifies them to act as mediators and conciliators, and they also have experience from the relevant industry. This is one of the reasons why the Board’s mediators are referred to as building mediators. Conciliators will often have experience from appointments as technical arbitrators, specialist experts or expert appraisers at the Arbitration Board.
Before commencement of mediation or conciliation it is useful to have a brief preparatory telephone meeting between the parties, possibly assisted by their counsels, in order to discuss the mediation or conciliation process and fix the time of the mediation or conciliation meeting, which must be held no later than ten working days after the appointment of the mediator or conciliator. It is important that the parties or their counsels have an opportunity to discuss the process with the mediator or conciliator, including whether a brief statement of the facts of the dispute and documentation are needed. The number of documents should be kept to a minimum in mediation and conciliation procedures.
In the event of a successful outcome of the mediation or conciliation process, an agreement is drafted and signed by the parties. If the process is unsuccessful, it will be necessary to resolve the dispute in some other way, which will typically be in the form of arbitration. In such a scenario, the parties will often find that the preceding mediation or conciliation has reduced the points in dispute and hence the scale of the case.