Conciliation is the act of adjusting or settling disputes in a friendly manner through out of court means. Conciliation means bringing two opposing sides together to reach a compromise in an attempt to avoid taking a case to trial. Conciliation is a method under alternate dispute resolution. In the U.S., conciliation is admissible previous to any submission in court. In conciliation, both the parties select a third party who hears both sides and then prepares a compromise that the conciliator feels as a fair disposition of the matter in dispute.
Arbitration is an alternative means of settling a dispute by impartial persons without proceeding to a court trial. It is sometimes preferred as a means of settling a matter in order to avoid the expense, delay, and acrimony of litigation. There is no discovery and there are simplified rules of evidence in arbitration. The arbitrator or arbitrators are selected directly by the parties or are chosen in accordance with the terms of a contract in which the parties have agreed to use a court-ordered arbitrator or an arbitrator from the American Arbitration Association. If there is no contract, usually each party chooses an arbitrator and the two arbitrators select a third to comprise the panel. When parties submit to arbitration, they agree to be bound by and comply with the arbitrators’ decision. The arbitrators’ decision is given after an informal proceeding where each side presents evidence and witnesses. Arbitration hearings usually last only a few hours and the opinions are not public record. Arbitration has long been used in labor, construction, and securities regulation, but is now gaining popularity in other business disputes.
Title 9 of the U.S. Code establishes Federal law supporting arbitration. It is based on Congress’s plenary power over interstate commerce. Where it applies its terms prevail over state law. There are, however, numerous state laws on ADR. The majority of states have adopted the Uniform Arbitration Act as state law. Thus, the arbitration agreement and decision of the arbiter may be enforceable under state and federal law. In 1970, the United States joined the UN Convention on the Recognition and Enforcement of Foreign Arbitral Awards.
Some arbitration proceedings are mandatory, such as many labor disputes. Other arbitration proceedings are incorporated into contracts in the event of a dispute. Couples who sign cohabitation agreements or divorce agreements often include a clause agreeing to go to arbitration if any dispute should arise, thereby avoiding the delay, expense, bitterness and formality of litigation. Companies may seek arbitration of disputes for public relation reasons, so as to avoid the negative publicity of a trial.