Supreme Judicial Court Rule 1:18 encompasses the Uniform Rules on Dispute Resolution (“Rules”). The Rules govern court-connected dispute resolution services provided in civil and criminal cases in the Commonwealth’s trial courts. One of the express purposes of the Rules is to “foster innovation” in the delivery of court-connected dispute resolution services. Conciliation is an alternative dispute resolution process offered in many of the Commonwealth’s Probate & Family Courts, and in some District and Superior Courts.
Mediation and conciliation are similar processes, and as a result, they are often confused with each other. Rule 2 defines “conciliation” as “a process in which a neutral assists parties to settle a case by clarifying the issues and assessing the strengths and weaknesses of each side of the case, and, if the case is not settled, explores the steps which remain to prepare the case for trial.” By contrast, “mediation” is defined as “a voluntary, confidential process in which a neutral is invited or accepted by disputing parties to assist them in identifying and discussing issues of mutual concern, exploring various solutions, and developing a settlement mutually acceptable to the disputing parties.”
There are noticeable differences between the definitions of “conciliation” and “mediation.” For example, a conciliator is tasked with assessing strengths and weaknesses, whereas a mediator facilitates a discussion of issues of mutual concern. These differences indicate that a conciliator is expected to take a more active, evaluative role than a mediator. In order to fulfill this role, conciliators are required to be members in good standing of the Massachusetts bar, have engaged in the practice of law within the Commonwealth for at least three years, and complete a specialized conciliation training.
As most Massachusetts practitioners know, the mediation process is confidential pursuant to the Commonwealth’s mediation statute, G.L. c. 233, § 23C. Conciliation is not protected by statute in Massachusetts, however, pursuant to the Ethical Standards contained in the Rules (Rule 9), conciliators must “maintain the confidentiality of all information disclosed during the course of dispute resolution proceedings,” subject to certain enumerated exceptions. To close any confidentiality “gap” caused by the absence of a conciliation statute, parties can memorialize an agreement that ensures confidentiality of the entire conciliation process.