For the parties, it is a less confrontational way of resolving matters, which is especially important when a change in attitude or behaviour is considered more important than punishing a violation. However, it should be borne in mind that institutions maintain their role as defenders of the public interest regardless of the technique used. Some conditions are particularly conducive to successful conciliation and/or mediation. These include, for both processes: ■■ The willingness and the readiness of two parties to participate (indeed, mandatory alternative dispute resolution is possible only if authorized by law); ■■ The desire of the two parties to retain good relations; ■■ The degree to which both parties wish to avoid (further) investigation or other action; ■■ The desire of the parties to settle their difference as quickly as possible; and ■■ The authority of the parties to conclude a settlement: if either party is represented, that representative must have the authority to settle the matter. If the respondent is a company, the representative at the negotiations must have the legal power to settle. For mediation in particular: ■■ The degree to which each party wants to have control over the issues discussed and the process; and ■■ The desire of the parties to have their side of the story heard by a neutral third party, without anything to fear. 2. The mediation/conciliation process There is no single, universally accepted mediation and/or conciliation process. Some institutions may use a different process for mediation than for conciliation. A generic process is presented below for illustration only; it is not meant to imply that there should be only one approach used in all cases. Where substantive differences in procedures might apply, depending on the position the institution took as to the nature of the process, these are noted below. Agree on the ground rules The parties should have a complete understanding of the nature of the process to be used and the degree to which the discussions and agreements are confidential. Some institutions treat alternative dispute resolution confidentially so that nothing said can be used against either party later if the process is not successful and further action (e.g., investigation) is to be taken. This tends to encourage candour and parties may say things they would never say in a hearing. Others hold that such confidentiality exists with mediation but not for conciliation. This can be used to push the parties to undertake mediation earlier in the process rather than when positions are entrenched and the stakes are higher. Similarly, some institutions keep settlement agreements confidential, whereas conciliation agreement settlements are in the public domain. However, the parties may be required to forfeit their confidentiality if they fail to respect the terms of the agreement, at which point some NHRIs are authorized to seek judicial enforcement of the agreement. Again, this will depend on the powers and standing of the NHRI before the courts. Parties should know which of these approaches will apply before the process begins. 94