In conciliation, an independent person (the conciliator) tries to help the people in dispute to resolve their problem. The conciliator should be impartial and should not take one party’s side.
There is no general agreement over whether conciliation is different from mediation. Essentially, conciliation is much the same as mediation – a conciliator, like a mediator, is an independent, impartial third party who helps people resolve a dispute. It’s just that, in some particular types of dispute resolution, the term ‘conciliation’ is used rather than ‘mediation’.
In some conciliation schemes, the process is dealt with over the phone or on paper, rather than through a face-to-face meeting.
Mediation is an alternative method of settling disputes, part of the family of dispute resolution processes known as ADR (alternative dispute resolution). It is a way of resolving differences between parties and is voluntary.
Any party can initiate a mediation as a method of dispute resolution. It is more likely to produce results and can save time and cost.
The mediator is normally accredited by an appropriate body and can be a surveyor or other professional from another discipline.
Mediation can be applied to any area of property where there is a dispute to resolve, as an additional tool to those currently available, in a whole variety of surveying contexts, for example, disputes about construction, landlord and tenant, rights of light, boundaries, valuation, compulsory purchase orders and in the planning system. In planning disputes mediation is particularly well suited to resolving disputes over obligations such as affordable housing and financial contributions.
Mediation uses processes and techniques to enable the parties to settle differences between them; it is not arbitration or settlement by an expert but involves the parties working towards a mutually agreeable settlement assisted by an independent neutral, or third party.
Mediation offers significant advantages to property and planning and development professionals in terms of the speed, cost-savings and the lower risks associated with the process. It is also better for the relationships between parties as they remain in control; it often results in a new solution being found to the problem.
The government-commissioned Barker review of the planning system defines mediation as:
‘…the intervention into a dispute by an impartial third party whose role it is to assist the parties in reaching their own mutually acceptable settlement…‘.
Principles of Mediation
Mediation is about settling, or at least reducing, differences between parties – at any stage of a dispute; or where negotiations have stalled. The main features of mediation are:
- a person-centred approach;
- and a focus on future outcomes.
It involves working together, concentrating on problem-solving and avoiding an adversarial approach. As a direct consequence of these features, mediation is recognised as having a high probability of leading to a settlement.
The mediator is an independent third party who helps the disputing parties reach a mutually acceptable settlement. Crucially, mediators do not adjudicate or arbitrate. If the parties do not ultimately find themselves at a point where each can see an acceptable outcome, there is absolutely no compulsion for them to arrive at an agreement. Paradoxically, this absence of compulsion is a strong factor in bringing the parties to a negotiated settlement.
The success of the mediation is in large measure down to the skills of the mediator, who is there to control the process, without taking responsibility for solving the parties’ problems for them – that must remain with the parties. The mediator will combine empathy with authority, be a good listener and a skilled facilitator. The mediator will have to judge when to bring the parties together and when to work with them separately. When with the parties privately the mediator may wish to challenge their case, with neutral, open, questions.
The mediator is normally accredited by an appropriate body and can be a surveyor or other professional from another discipline. RICS trains mediators itself and offers its own mediation service – see the RICS Dispute Resolution Service website. RICS mediators operate within a framework – view the information pack for RICS-accredited mediators.
Parties to a Mediation
A mediation can involve any number of parties. Most mediations involve 2 parties who are in dispute over some matter and they can be legally represented. There are 2 key attributes the parties need for a mediation:
- a willingness to settle;
- the authority to do so.
The parties can initiate a mediation at any time – it is entirely voluntary. They will be required to sign a mediation agreement that governs the mediation process, which is typically carried out with complete confidentiality.
Routes to Mediation
Mediation can be considered at any stage in negotiations, once a dispute has arisen. Typically the trigger is when the dispute is, or is likely to be, proceeding towards some form of legal process: litigation, arbitration, appeal or similar. Parties decide to reduce the risk and cost of the outcome by considering mediation.
Advantages of Mediation
The parties in dispute remain in control, instead of handing the process of resolution to an external person (expert or arbitrator) or appeal body. The outcome is, therefore, in their hands. They are able to use the mediation to find a settlement they can both live with, and that may not be one they came into the mediation expecting.
Mediation is also quick to arrange: there is no need to wait for someone to be appointed by an external body, the parties arrange it themselves. Being quick to organise and usually taking no longer than a day, mediation is also relatively inexpensive. In most cases, only short statements and copies of selected or relevant documents are circulated beforehand, unlike preparing for a court hearing or appeal.
The power of mediation is that it is more likely to produce results – the risks of failure are far lower than in other processes. Mediation can result in wholly new solutions being agreed, whereas an appeal is only an adjudication between the solutions put forward by the parties.
The mediation process therefore has the following advantages:
- highly flexible, not prescriptive;
- parties remain in control;
- relatively inexpensive;
- empowers stakeholders;
- better for working relationships; and
- seeks a win-win outcome.
The main benefits of choosing mediation are that it:
- saves time – it can take a few weeks to organise;
- saves cost – avoids an appeal or reduces issues;
- reduces risk – it has a far higher success rate than appeals.
Decision to seek mediation
Any party can initiate a mediation and at any stage, though the earlier the better. The trigger is normally the threat of some other form of resolution process. One party may suggest to the other the merits of mediation and start the process. A mediator can be sourced from the RICS Dispute Resolution Service or other appropriate providers.