Mediation, Conciliation, Litigation and the Collaborative Law Process Panel

On Monday, February 25th, Hindell served on a panel with Attorneys Tony Pelusi, Gina Ghioldi, and Justin Kelsey, to explain the differences between divorce mediation, conciliation, litigation and the Collaborative Law Process, to a group of 25 other “trusted advisors”, who are also members of ProVisors. Hindell was assigned to describe “conciliation” which was the most challenging of them all.

Most definitions of conciliation start by describing the similarities with mediation. The overlap includes i) voluntary use of a neutral person to resolve a dispute; ii) meeting with the spouses with or without their attorneys; iii) meeting with one spouse and attorney, then the other spouse and attorney; iv) goal of resolving the terms of a divorce, or any single or multiple issues, if not the entire case.

In fact, according to Hindell, divorce conciliation is more like arbitration in that the neutral conciliator is a subject matter expert (i.e., a retired Probate and Family Court Judge), who drives the negotiations and directs the parties toward agreement by making proposals for settlement. Because of the conciliator subject matter expertise, they are in the unique position to recommend a settlement proposal. 

While a conciliator proposal is akin to an arbitrator’s award, there are many bright line differences between conciliation and arbitration. First, in arbitration, the parties give the arbitrator authority to make a final and binding decision (called an “award”), like a Judge would, after a less formal trial in a conference room. In conciliation, the parties do not give the conciliator this kind of authority, nor is there a trial of any kind, but the conciliator can make recommendations for settlement, even if not binding ones. In conciliation, there is fluid discussion and negotiations, whereas arbitration is a more structured process with witnesses, evidence and testimony.

While the distinctions between mediation, conciliation and arbitration might be confusing, Hindell’s experience with conciliation has proven to be instrumental in the food faith settlement of cases.

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