Conciliation

Conciliation is a process quite unique to construction disputes and has been used in Ireland for many decades in an effort to resolve disputes.

Put simply, conciliation should be a mediation where, if the parties fail to jointly resolve their concerns (reach a settlement) the conciliator will issue a recommendation as to his/her view of the correct outcome. It is open to the parties to either accept or reject this recommendation.

There are many problems with conciliation. Most obviously is that a conciliator commences working as a mediator, but at the same time is being judgmental as he/she may have to issue a recommendation. It is all but impossible for the conciliator not to expose his/her leanings as the conciliation proceeds, and therefore parties may end up settling matters as they try to second guess the conciliator's view. Given that a conciliation is not subject to the rules of natural justice or fair procedures, it has to be approached with the utmost caution by parties that may find themselves agreeing to a settlement that is not fair or representative of a potential outcome at litigation or arbitration (see comments hereunder on arbitration and the section of this website on litigation).

Notwithstanding the comments above on conciliation, it often resolves disputes at a fraction of the cost of arbitration or litigation and many in the construction industry swear by it, but the questions has to be asked; is that not more to do with the failure of the arbitration process as presently managed in Ireland or is the success not purely because it is a costly step in the proceedings and parties become weary of the dispute process so settle on terms they possibly ought not to have so done.