Conciliation and Mediation in an Arbitration Case
Conciliation and Mediation in an Arbitration Case
Conciliation and mediation are both Alternative Dispute Resolutions (ADRs), and both involve an independent and impartial third party called conciliator or mediator, as the case may be. Such resolutions are more cost-saving and efficient compared to arbitration and litigation.
In conciliation, the third party (conciliator) plays an advisory role, which means that he proposes solutions to the issues in dispute to facilitate the disputing parties to reach a settlement. While in mediation, the third party (mediator) actively intervenes in the communication between the disputing parties.
Whether in conciliation or mediation, the purpose is to facilitate the negotiation and communication between the parties and reach a settlement agreement that is binding on the disputing parties.
In an arbitration case, a conciliator or mediator may be jointly selected by the disputing parties or appointed by the arbitral tribunal, chairman, or an arbitrator and agreed upon by the disputing parties. He may be an arbitrator, expert, or any other person, but should remain independent and impartial in conciliation or mediation.
In an arbitration case, conciliation or mediation may occur at any time after a request for arbitration is submitted and before a final award is made.
If conciliation or mediation is successful, the disputing parties may enter into a settlement agreement or request the arbitral tribunal to render an award based on the terms that the disputing parties have reached.
In the case of a settlement agreement, the settlement agreement will take effect on the date of entry into force agreed therein or the date when the disputing parties affix their names and/or seals thereto in the absence of a date of entry into force agreed upon. And either disputing party may renege on the settlement agreement before signing it or before signing for acceptance upon receipt if a later date of entry into force is agreed upon.
In the case of an award based on the terms of settlement, the award becomes effective and enforceable once it is made, and neither disputing party has a chance of reneging on the settlement in such a case.
Robert Zhang 
Steve Li 