And, how is it different to mediation?
As a qualified experienced mediator and conciliator (College of Law, Sydney, 2017), I am passionate about this restorative justice focused option to provide access to justice to people in often vulnerable and difficult situations in their lives.
Conciliation is often practiced in the three main areas of law:
1. family law matters;
2. employment law disputes; and
3. human rights complaints.
Conciliation and Mediation is similar, with some distinct differences, and it is preferred by Courts, Judges, and of course, those seeking justice.
It is cheaper, quicker, easier, and both parties have a lot more control of the outcome than in a courtroom setting. It is a preferred method all round!
Conciliation is an Alternative Dispute Resolution process where:
- an independent third party (the conciliator),
- helps people in a dispute,
- to identify the disputed issues,
- develop options,
- consider alternatives; and
- works towards a mutual agreement.
A conciliator may have professional expertise in the subject matter in dispute and will generally provide advice about the issues and options for resolution but will not make a judgment or decision about the dispute.
Conciliation may be voluntary, court ordered or required as part of a contract.
What is conciliation?
- an informal, quick, and cost effective way to resolve a complaint;
- it gives the person who made the complaint (the complainant) and the person or organisation being complained about (the respondent) the opportunity to talk about the issues in the complaint and try to resolve the matter themselves;
- can take place in a face-to-face meeting or a meeting over the telephone. This is called a 'conciliation conference'.
Conciliation is not like a court hearing.
The person who manages the conciliation (conciliator) does not decide who is right or wrong or how the complaint should be resolved.
The Conciliator's role is to help both sides talk to each other and try to reach an agreement.
When is conciliation suitable?
Conciliation is likely to be suitable if you:
want to reach an agreement on some technical and/or legal matter;
want assistance with the process of negotiating an outcome;
want to make the decision with the other participants involved;
want advice on the facts in your dispute.
Conciliation may also be suitable if you have tried a direct approach or mediation and you still cannot reach an agreement with the other party.
Conciliation in Family Law Matters
According the Federal and Family Court of Australia, Conciliation is a form of dispute resolution and provides an opportunity for parties involved in a legal dispute to reach an agreement without the uncertainty, cost and time of a court hearing.
It is the process usually adopted to try to resolve disputes in general federal law matters in the Court.
The Court may refer a proceeding, or a part of a proceeding or a matter arising out of a proceeding, for conciliation, an informal, quick, and cost-effective way to resolve issues in dispute.
During a conciliation conference, parties must make a genuine effort to reach agreement on the relevant matters in issue.
If an issue remains unresolved at the end of the conciliation conference, the judge or registrar may give further directions and make any other order, including an order for costs.
Conciliation may often occur:
1. before the family matter goes to Family Court.
2. in employment law matters before the Fair Work Commission at the Tribunal; or
3. seek to deal with your human rights matter before the Australian Human Rights Commission.
Conciliation in a Fair Work Dispute
Fair Work Dispute Conciliation is a voluntary process to help an employer and/or an employee resolve an unfair dismissal dispute.
It is an informal method of resolving the unfair dismissal claim that is generally conducted by telephone and can avoid the need for a formal conference or hearing.
Because conciliations are generally conducted by telephone, parties do not need to attend a Fair Work Commission office.
In a fair work dispute conciliation, each party can negotiate in an informal manner and explore the possibility of reaching an agreed settlement.
In a fair work dispute conciliation, any outcome is possible provided both parties agree to it.
In a Tribunal hearing, the outcomes are limited and strictly controlled by law.
Parties are under no obligation to reach a settlement.
Unrepresented parties are usually offered a 3-day cooling off period following conciliation to decide if they wish to opt out of any agreed settlement.
Conciliation at the Human Rights Commission
Many complaints that the Australian Human Rights Commission receives are resolved through conciliation. The Australian Human Rights Commission is an impartial third party during the conciliation process.
Conciliation is an informal, flexible approach to resolving complaints.
Matters can be settled by an exchange of letters, a telephone negotiation between the Commission and the people involved, a telephone conciliation conference or a face to face conciliation conference.
The conciliation conference with he Australian human rights commission is not a public hearing, a court of law or a tribunal.
Parties do not have to prove or disprove the complaint.
Conciliation allows people to state their point of view, discuss the issues in dispute and settle the matter on their own terms. This give both parties greater control over the outcome of their matter.
Outcomes to the conciliation will vary depending on the nature of the complaint.
Agreements can include an apology, reinstatement to a job, compensation for lost wages, changes to a policy or putting in place anti-discrimination policies.
If the complaint cannot be resolved through conciliation, the matter may be heard in the Federal Court of Australia or the Federal Circuit and Family Court of Australia.
In certain circumstances, an application to the court must not be made by the complainant unless the court has granted leave to make the application.
The role of a Conciliator
The role of a conciliator is to assist the parties to consider different options to resolve the complaint and provide information about possible terms of settlement. We can also help write up the conciliation agreement.
The role of conciliators is similar to that of mediators except that the conciliator may also:
have specialist knowledge and give you some legal information
suggest or give you and the other participants expert advice on the possible options for sorting out the issues in your dispute
actively encourage you and the other participants to reach an agreement.
The conciliator will not:
take sides or make decisions
tell you what decision to make, although they may make suggestions
decide who is right or wrong
Conciliation is usually held face to face, so that you can talk to each other directly.
You may also have separate sessions with the conciliator.
Sometimes the conciliator can act as a 'messenger' by talking to you and the other participants separately and communicating ideas or proposals between you.
What does the conciliator do?
Decides how conciliation will take place and who will participate after briefly discussing the matter with the complainant and respondent;
Reads the submitted written applications to gain a basic understanding of the matter. The procedure heavily relies on theses written submissions for proceedings to take place;
Helps to ensure conciliation is as fair as possible for everyone involved;
Provides information about the law and how the law may apply to the complaint, but does not decide who is right or wrong;
Provides information about how other complaints have been resolved, but does not tell either side what they should do;
Assists the complainant and respondent think about ways to resolve the complaint.
The conciliator is not an advocate for either the complainant or the respondent.
Who participates in conciliation?
The complainant and the respondent are the main people in a conciliation process.
The representative of the respondent in the case where they are a company or organisation, the representative should understand the purpose of conciliation and have authority to make a decision on behalf of the company or organisation.
If you want to bring a lawyer or another type of advocate to participate in conciliation, you need to discuss this with the conciliator before the day of the conference and obtain the conciliator'sr permission.
You can also ask to bring a support person to assist you in conciliation if you so desire.
The role of a support person is to provide moral support, and, usually, a support person does not speak for you or play an active role in conciliation.
Is conciliation confidential?
Legally, if a complaint is not resolved and the matter proceeds to court, anything a person says or does in conciliation cannot be used in the court proceedings.
The court may consider information about offers to resolve the complaint that have been rejected, when decided whether to award costs.
The Commission also asks those involved in conciliation to agree, in good faith, to keep what is said and done in conciliation 'confidential'.
The mattress that are discussed in conciliation should not be made public in any way or discussed with people who are not directly involved in the matter.
Keeping conciliation 'confidential' allows both sides to have open and frank discussions.