Confidentiality, Termination, Costs, and What the Conciliator May Never Do Afterwards

In one line

What is said in a conciliation stays there, the conciliator can never later be the arbitrator or a witness, and either party can walk out at any time.

In exam wording: sections 75 to 81 of the Arbitration and Conciliation Act 1996 govern confidentiality, the termination of conciliation proceedings, resort to arbitral or judicial proceedings, costs and deposits, the role of the conciliator in other proceedings, and the admissibility of evidence in other proceedings.

Why these seven sections are the ones that make conciliation work

Chapter 560 explained that a conciliator may meet one party alone, and may propose terms. That only works if the parties can speak freely, and they will only speak freely if they know two things:

• that what they say will not be repeated, which is section 75; and
• that what they say cannot be used against them if the conciliation fails, which is sections 80 and 81.

Without those, no sensible party would make a concession in a conciliation, because every concession would be evidence of weakness in the litigation that follows.

So this chapter is not housekeeping. It is the reason the process is capable of producing settlements at all.

Section 75: confidentiality

Notwithstanding anything contained in any other law for the time being in force, the conciliator and the parties shall keep confidential all matters relating to the conciliation proceedings. Confidentiality shall extend also to the settlement agreement, except where its disclosure is necessary for purposes of implementation and enforcement.

Three points.

It binds the conciliator and the parties, and it covers all matters relating to the proceedings, not merely what was said at a meeting.

It extends to the settlement agreement itself, with one exception: disclosure necessary for purposes of implementation and enforcement. A party enforcing the settlement obviously has to produce it.

The non obstante clause puts it above other laws.

Compare section 42A for arbitration, chapter 430, inserted only in 2019 and drafted in almost the same words. Conciliation has had a confidentiality provision since 1996; arbitration waited twenty-three years for one. That is worth a sentence in an answer about the design of the Act.

Section 76: how a conciliation ends

The proceedings shall be terminated:

• (a) by the signing of the settlement agreement by the parties, on the date of the agreement;
• (b) by a written declaration of the conciliator, after consultation with the parties, that further efforts at conciliation are no longer justified, on the date of the declaration;
• (c) by a written declaration of the parties addressed to the conciliator that the proceedings are terminated, on the date of the declaration; or
• (d) by a written declaration of a party to the other party and the conciliator, if appointed, that the proceedings are terminated, on the date of the declaration.