Blog » Enterprise and Regulatory Reform Bill: Mediate or Conciliate?
The new Enterprise and Regulatory Reform bill had its second reading in parliament recently. Anyone who is thinking of launching an employment tribunal claim will have to go to ACAS before doing so, with a view to resolving the issue without recourse to proceedings.
Are they different?
On paper, this is an excellent idea, saving everyone a lot of time, stress and money in the process. But let's have a think for a minute about the difference between conciliation and mediation. One significant difference between conciliation and mediation lies in the fact that conciliators possess expert knowledge of the domain in which they conciliate. The conciliator can make suggestions for settlement terms and can give advice on the subject-matter. Conciliators may also use their role actively to encourage the parties to come to a resolution. In certain types of dispute the conciliator has a duty to provide legal information. This helps any agreement reached to comply with any relevant statutory framework pertaining to the dispute. Therefore conciliation may include an advisory aspect. Mediation works purely facilitatively: the practitioner has no advisory role. Instead, a mediator seeks to help parties to develop a shared understanding of the conflict and to work toward building a practical and lasting resolution.
For and against
So what are the pluses and minuses? Well, conciliation is very much what is says on the tin. It seeks to overcome animosity and appease; to try and regain a relationship, to reconcile or calm the waters. Also, conciliation has a legal aspect in that conciliators may be asked to provide legal information. Mediation, on the other hand, takes an active interest in enabling and facilitating an agreement between parties that can be sustained, by them, into the future. Mediation is about healing and finding a way forward. Mediation is about sustainability.
Both are well-established and well-regarded means of dispute resolution. However, if I were thinking about how best to ensure that the Enterprise and Regulatory Reform bill had real legs and could stand the test of time, I would go for something that had sustainability as part of it's "DNA".
Solutions that grow with the people
It's important to ensure that any serious attempt at reforming the way that we do things, especially when it relates to our adversarial judicial systems, has the prospect of longevity. Without this in-built survival mechanism, any attempt to bring about a lasting agreement that will - (95% of the time) - result in lasting change and resolution for people is doomed to failure. Why would anyone stick to something that they hadn't taken an active part in crafting that includes an agreement to take the relationship forward? I could conciliate the living daylights out of someone and then turn around and take legal proceedings forward if I decided to change my mind. Much better to embrace a system that takes sustainability seriously and builds it into the process.
The essence of "buy in"
It's well known that unless people "buy in" to an idea, a process, a change, it's less likely to succeed. All this means is that if you include people in crafting a response to something that's affected them, (whether that's an idea you've had, a process you need to go through or a change you want to bring about), it will have a much better chance of success. That's what mediation does. It's an enabler. Mediators are impartial facilitators, helping to bring people towards taking an active part in their own solutions. That's why the success rate is so high.