09 February 2012 Written by  Tefera Eshetu and Mulugeta Getu

Conciliation

Preliminary Points

Conciliation is one type of ADR, which may be used in the settlement of a variety of dispute. The term conciliation is sometimes used interchangeably with mediation though there is slight difference among these two processes. The Ethiopian law used conciliation rather than mediation and it is the second widely used ADR next to arbitration. The civil code in its special contract part discusses conciliation not in the sense of contract only but also its procedural aspect. Though it fails to define what conciliation means, it provides procedure for appointment of conciliator, the rights and duties of the parties and the conciliator, and its effects.

The specific articles under Section 2 which is entitled as "Conciliation" regulate only few matters of conciliation. This, however, does not mean that these are the only articles about conciliation. The discussion we have made above about compromise is equally applicable to conciliations if the proceeding ends up with success (compromise) (3321).

Even if the Ethiopian law failed to define what the term conciliation means, it can be defined as an informal process in which a neutral third party, conciliator, tries to bring the disputants to agreement, lowering tension, improving communications, interpreting issues and exploring potential solutions so that they can discuss their dispute and come to a negotiated settlement. Thus, conciliation can be viewed as a process towards compromise by the help of the intermediates, conciliators. This is to recall the discussion so far made in the second chapter of this material about conciliation.

Concerning the commencement of conciliation proceeding and how it comes in to existence, the Ethiopian legal system is not totally silent. According to the civil procedure code provisions it come in to existence by the initiation of one of the parties or by the initiation of the court if the case is before it. We are not far from the truth if we take this part of the code and make it to have effect in all cases though the dispute is not brought before the court of law.

The other important issue which is not well addressed by the Ethiopian law is about the kinds of subject matters which could be safely resolved by conciliation. Conciliation can be opted in relation to disputes arising out of a legal relationship, whether contractual or not, provided that the parties have chosen to refer their dispute to conciliation. Conciliation might be the most favourable means of dispute settlement over arbitration and litigation in some cases like where a higher amount of flexibility is required, secrecy is top priority, the dispute is of less serious in nature, the parties' future relation should not be prejudiced ( e.g. disputes in family and employment relation) etc. But this does not mean that all disputes are allowed to be referred to conciliation. Our law is not clear enough to distinguish these subject matters of dispute.

Conciliators

Conciliators are persons who act as an intermediate during the conciliation proceeding between the disputants in their effort to resolve the dispute by compromise. It the proceeding is out of court, in fact it is in most of the cases, the power, right and duties of conciliators are regulated by Arts 3318 - 3324 of the civil code.

It is the inherent right of the disputant or parties to determine the identity and number of conciliator whom they believe that he or she can protect their interest by bringing them together and negotiating a settlement between them. This inherent right extends in discharging the conciliator from his office as well. However, the conciliator may be appointed by an institution or third party where the disputants wish so to happen (3318(1) and (2)). To be a conciliator is not a public duty to be imposed against the interest of the person nominated to such status. Thus, a person appointed as a conciliator shall be free either to accept or refuse his appointment (3318(3)). As to the qualification of the person to be appointed as a conciliator, the Ethiopian law is silent and what matters here is only the interest of the parties. Thus, the conciliator can be any laymen, lawyers or other professionals. But it is advisable for the parties to select a person who is having experience and knowledge concerning the matter at hand and feels responsible in discharging his duty.

Concerning the number of conciliator, Ethiopian law is silent too. There is no limitation as to the number of conciliator; it can be one, two, three, four, etc. The parties may determine the number of conciliators as they want.  The experiences of others show us that the number of conciliators can be odd or even since there is no decision to be made by him (them). However, it is advisable to have limited number of conciliators according to the complexity of the case.

Conciliators are only facilitators and make no decisions on the merit of the case and can not impose his view of what a fair settlement would be. The conciliator shall assist the parties in an independent and impartial manner in their attempt to reach an amicable settlement of dispute. The conciliator is to be guided by the principle of objectivity, fairness and justice, The followings are some of his specific duties;

  1. He shall give the parties an opportunity of fully stating their views before expressing his findings (3320 (1) and (2)),
  2. He shall draw up the terms of compromise if the parties come to a negotiated understanding or a memorandum of non-conciliation if the parties failed to reach a negotiated settlement of the dispute. And also he has to communicate such documents to the parties (3320(3)),
  3. He is required to keep confidential all matters relating to the conciliation proceeding. This obligation also extends to the negotiated settlement or agreement, except where its disclosure is necessary for the purpose of implementation and enforcement,
  4. Principle of impartiality; He should be neutral, honest and diligent and stand only to protect the interest of both parties to the dispute. In discharging his duty he has to be guided by the principle of objectivity, fairness and justice.
  5. He shall try to complete the whole proceeding of conciliation within six months (3321(1)),
  6. Help the parties to enforce the conciliation, e.g. discharge stump duty as per the stamp duty proclamation, he may sign up on the negotiated settlement agreement, but this is not mandatory.

The corresponding right of the conciliator will be to get due respect and recognition from the disputants. In addition, he "shall be refunded of any reasonable expense he has incurred in the discharge of his duties". This is some sort of compensation for the money he has spent during the proceeding while facilitating the compromise.  But for the time he devoted and service he delivered, there won't be any payment or remuneration unless the parties expressly agreed (3323).

When we see the rights and duties of the parties, substantially it will be determined by the agreement of the parties and commitments they will exchange during the on set of the proceeding. In addition, there are some mandatory duties dealt by the code. Some of these duties are the following;

  1. They shall provide the conciliator with all the information necessary for the performance of his duties,
  2. They shall refrain from any act that would make the conciliator’s task more difficult or impossible,
  3. They shall refund any reasonable expenses incurred by the conciliator while discharging his duties, and, if agreed, the remuneration due to him,
  4. During the proceeding, they shall refrain themselves from taking their cases before the courts of law or administrative tribunals unless the conciliator draw up memorandum of non-conciliation. This is in order to avoid multiplicity of proceedings on the same dispute. But the parties are free to other thing to preserve their right when necessary.

It is hardly possible to set standard procedures to be followed during the conciliation proceeding. But we can say some by looking the practice and international experience. The conciliator up on his appointment may request each party to submit to him a brief written statement describing the general nature of the dispute and the points at issue. He may send a copy of such statement to the other party. By giving consideration to rights and obligations of the parties as per their agreement, trade usages, circumstances surrounding the dispute, including any previous business practice between them, the conciliator may conduct the conciliation proceedings in such a manner as he considers appropriate. The conciliator may invite the parties to meet him for discussion, communication with them orally or in writing, communicate with the parties together or with each of them separately.

Normally the place of meeting is arranged by the parties. However, if they are failed to do so, the conciliator may decide the place of meeting. The parties must in good faith cooperate with the conciliator. They must supply the needed written materials, provide evidence and attend meetings when they called by the conciliator.

When a settlement is reached the parties may draw it in written form and sign up on it. The settlement agreement may be authenticated by conciliator and such a settlement agreement shall be final and binding on the parties.

Effects of Conciliation

After you get in to the proceeding, there are two possible outcomes; compromise or non conciliation. If it end up with success and the parties sign up on the compromise that will be the end of the case and the one we have discussed above about the effect of compromise (e.g. res judicata) will apply. This means if the parties have expressly undertaken in writing to confirm the terms of compromise drawn by the conciliator, they shall be bounded by it. In addition, after a compromise is reached through conciliation and settled the dispute, then it may be taken as preliminary objection before the court if one of the parties takes the case before the court after the dispute had been conciliated. The one who wants the enforcement of the compromise will get it enforced as he wishes after paying the stamp duty as per the Stamp Duty Proclamation No 110/1998.

The other possibility is that the parties or one of them may adhere to his original extra ambitious claim and fail to drop his proposal. The law gives the conciliator a maximum of six months to come up with some result unless the parties provide a different period (3321(1)). Before the expiry of this time the parties can not institute a case before court of law on the same cause of action. But even before the expiry of the time if the conciliator feels that it is worse less to proceed further, he shall draw the memorandum of non - conciliation. This entitles both of the parties to institute court case on the same subject matter. The parties are also free to institute a case before the conciliator draws the memorandum of non-conciliation or compromise if the stipulated period of time expires.

Last modified on Wednesday, 02 May 2012 13:05
More in this category: « Arbitration Compromise »