WHAT IS CONCILIATION
Conciliation has been described by the online English dictionary as a form of alternative dispute resolution, similar to but less formal than mediation, in which the parties bring their dispute to a neutral third party who helps lower tensions, improve communication and possible solutions. When traced by its etymology, the verb “conciliate” comes from the Latin word conciliare, meaning “to unite.” Conciliare in turn comes from the Latin word concilium, meaning “council. Without further questioning, the identity of a conciliator is decrypted as a person who conducts conciliatory functions and performs duties directed towards resolving disputes through conciliation.
CONCILIATORS AND THEIR DUTIES
The Arbitration and Conciliation Act provides directive on how a conciliator must carry out his duties. By the provision of the Act and the Conciliation rules, a conciliator must be independent and impartial, he must acquaint himself with details and information of the case, necessarily interact with parties for factual information concerning resolving the dispute, elicit testimonies from witnesses if need be, draw up terms and record of settlement or assist parties to draw up the terms of agreement when required, maintain confidentiality throughout the course of the conciliation and be guided by the principles of objectivity, fairness and justice.
LEGAL FRAMEWORK FOR CONCILIATION IN NIGERIA
Conciliation is provided for in Part 2 of the Arbitration and conciliation Act (Sections 37 to 42) and Section 55 which further refers to the ‘Third Schedule’ which consist of The Conciliation Rules found at the end of the Arbitration and Conciliation Act.
Section 55 of the Act expressly states that the Conciliation Rules shall apply to disputes arising from international commercial agreement if parties agree in writing. This provision however, does not limit the use of the Conciliation rules to international commercial disputes as the rules have been referred to for guidance on domestic conciliation matters. It is however noteworthy that by the provision of Article 1 (3) of the Conciliation Rules, where any of the rules is in conflict with a provision of the Act, the provision of the Act prevails.
As mentioned earlier, Part 2 of the Act consists of Sections 37 to 42. Section 37 provides for the amicable settlement of disputes by Conciliation, notwithstanding other provisions of the Act.
CONCILIATION UNDER PART 2 OF THE ACT
Conciliation is initiated by a written request from one disputing party to the other, setting out a brief statement of the subject of the dispute. The proceedings are deemed to have commenced on the date the request to conciliate is accepted by the other party. In the light of their agreement, the Act prescribes that the parties shall appoint any or all conciliators to chair the resolutory function; particularly it states that the conciliatory body shall consist of one or three conciliators – “in the case of one conciliator, jointly by the parties, in the case of three conciliators, one conciliator by each party and the third conciliator jointly by the parties”. The parties are allowed to have legal representation if they wish or cannot appear in person. It is further stipulated that the conciliation body shall draw up and sign a record of settlement if parties agree to its terms of settlement following its hearing and examination of the case. If the parties however refuse the terms of settlement, they may resort to arbitration or litigation and nothing done in course of the proceedings shall affect the legal rights of the parties in any further resort which they might reach.
CONCILIATION UNDER THE CONCILIATION RULES
The Conciliation Rules consist of 20 Articles which serve as directive to resolving disputes in international commercial agreements by conciliation. They are basic rules of conduct for domestic conciliatory matters as well except where in dispute with the provisions of the Act.
By the establishment of Article 1 of the Rules, the parties must have agreed to be bound by conciliation for them to apply and where necessary, the rules can be excluded or varied by parties. Similar to the provisions in Part 2 of the Act, a written invitation to conciliate initiates conciliation however, where the other party rejects the invitation or fails to respond within 30 days from when the invitation was sent or within a specified period of time in the invitation, the initiating party can deem it to be a rejection to conciliate and will inform the rejecting party accordingly. In slight variance from Part 2 of the Act, there can be one, two or three conciliators, conciliators are expected to act jointly where they are more than one. Parties may request a list of suitable conciliator or agree that an appropriate institution appoint a suitable conciliator on their behalf.
Representation and assistance are seemingly distinguished by Article 6 as the names and address of either representative or assistant are required for the other party and the conciliator to depict whether the appointment of such person falls within representative or assisting capacity. The Conciliator may require and appoint administrative assistance for facilitation of the conduct of the proceedings. He may decide to meet with the disputants physically, orally or in writing, he can do any of these with both parties present or elect to speak with the parties one at a time. The aim of either mode of interaction is to receive factual information and disclose necessary information where needed in order that the other party may have opportunity to present any explanation he considers appropriate. The parties in turn are expected to co- operate with the conciliator and are allowed to submit his/her suggestions for a resolution to the dispute.
In variance with Section 42 (2) of the Act, the Conciliator does not draw up the record of settlement, it is the parties who draw up their settlement agreement following a formation of terms of settlement by the Conciliator. The Conciliator only draws up the settlement agreement on request of parties. He may also assist the parties in drawing up the said agreement. Curiously, Article 7 (4) provides that the Conciliator may make a proposal for the settlement of the dispute and such proposal need not be in writing or accompanied by a statement of reasons suggesting the said proposal.The parties shall undertake not to disrupt the conciliation proceeding by any judicial or arbitral proceeding on the same subject matter while conciliation is still in course.
The parties are expected to attend to the costs fixed by the conciliator and as stipulated under Article 17. By virtue of Article 19, the conciliator is prohibited from acting as an arbitrator or representative counsel of any of the parties whether in arbitral or judicial capacity and he/she shall not be presented as a witness in any such proceeding. The Parties are in turn barred from relying on or introducing as evidence in further arbitral or judicial proceedings views expressed or suggested by the other parties during the course of the conciliation, admissions by the other party, proposals by the conciliator and the fact that the other party had indicated willingness to accept a proposal for settlement made by the conciliator
Circumstances leading to the termination of the conciliation proceeding are stated in Article 15 and Article 18 (3) of the Rules.
Instances which can warrant termination according to Article 15 are (i) by the signing of the settlement agreement by the parties, on the date of the agreement; or (ii) by a written declaration of the conciliator, after consultation with the parties, to the effect thatfurther efforts at conciliation are no longer justified, on the date of the declaration; or(iii) by a written declaration of the parties addressed to the conciliator to the effect that the conciliationproceedings are terminated, on the date of the declaration; or (iv) by a written declaration of a party to the other and the conciliator, if appointed, to the effect that the conciliation proceedings are terminated on the date of the declaration. Furthermore, if the required deposits which form the cost fixed by the conciliator are not paid in full by both parties within 30 days, the conciliator may suspend the proceedings or make a written declaration of termination to the parties, effective on the date of that declaration.
Irrespective of the slight contrasts between Part 2 of the Act and the Conciliation Rules, it is without a shadow of doubt evident that conciliation aims at resolving disputes amicably between parties. The process allows for meeting of minds and understanding of the root of the dispute before procuring ways to move further from that said dispute. The position and responsibility of Conciliator is not an easy one, it requires patience, speedy and effective reasoning, neutrality, honesty and a stable mental state in the midst of swinging emotions the parties might present. The Arbitration and Conciliation Act is laudable amongst other things, for its provisions on directions on Conciliation in the Act and by the Conciliation Rules because when compared to other dispute resolution mechanisms, conciliation seems less complex to conduct or manage. The complexities eventually raise an uproar during the course of proceedings and unarguably need effective stipulated guidelines and a competent conciliator to reach a resolve. As the saying goes, smooth seas do not make a skilled sailor.