What does conciliation involve?
Conciliation is a process where, if there is a potential disciplinary issue, an ICAEW case manager helps both parties consider various options with a view to finding a settlement.
Both parties agree to try and resolve the situation through conciliation and, later on, decide to make or accept any proposals to settle the complaint. The case managers are neutral and are not there to represent either party or make orders. Instead, they help to clarify the issues, give guidance and test the strength of both parties’ positions to help them reach a settlement. It helps if we can send to the other party a copy of any letters or information you send us. However, you can always mark documents ‘For ICAEW use only’ if you don’t want information to be disclosed.
We normally ask the accountant to respond within a specified period either directly to ICAEW or to the complainant. This gives the accountant the opportunity to outline their position and provide any supporting information that might be relevant. We then discuss and summarise the issues and explain the other party’s position. We may need to correspond further with both parties – by letter, email or phone – but we can arrange meetings if necessary.A complaint often arises because of a lack of communication or a simple misunderstanding. Whatever has happened, our role is to help you both, and the more we all communicate, the more efficient the process will be.
Conciliation can be efficient and successful but it does involve compromise. We resolve the case by exchanging letters or by signing a legally binding agreement called a conciliated settlement. This sets out the terms with which both parties are legally required to comply. Once the parties have implemented the solution, that’s the end of ICAEW’s involvement. For complainants, this means finding a satisfactory solution to the problem.
For members and firms, this means there’ll be no investigation and therefore no risk of a disciplinary record.For both parties, this usually avoids the need to go to court.
What if conciliation doesn’t work?
Although most complaints referred for conciliation are resolved, it doesn’t work in every case. If this happens, we can review the evidence to decide whether the matter should be further investigated. If we decide not to investigate, we’ll write to both parties and explain why.
How long does it take?
We try to agree an initial time-frame for resolution. Factors that can affect progress include the involvement of third parties such as insurers, the degree to which the parties cooperate and the complexity of the complaint. Members or firms may be under an obligation to tell their insurers about the complaint.
Can information be used against me?
If the discussions fail, neither party can subsequently refer to the negotiations in court, in arbitration or rely upon them. You can’t use documents or information obtained in conciliation as evidence in a court case or in arbitration except:
- by agreement with the other party;
- if you’re required to do so by a court order; or
- because the documents or information would have been admissible (ie, allowed by the law) as evidence in court.
If we investigate the complaint, all the information and evidence gathered during conciliation will be made available to the investigating case manager. This is what you agree to when you enter into conciliation.
In summary, conciliation is:
- Voluntary - the parties enter the process because they genuinely want to find a solution. You can’t be forced into conciliation; the alternative is investigation.
- Flexible - You’re more likely to reach a mutually acceptable outcome through conciliation than through litigation. Investigation may not result in any practical solution for the complainant.
- Your decision - You decide whether to offer or accept any proposals to settle the complaint.
- Quicker - You’re more likely to reach a solution quickly through conciliation than by going to court. Investigation can take from six months for a straightforward case to more than a year, depending on how complicated and strongly contested a case is.