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?
Conciliation is:
- 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
provide counselling.
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.
What happens at a conciliation conference?
During the process of conciliation, each party will usually have some private time with the conciliator before the conference begins and also at different stages during the process.
The conciliator will not disclose to the other side what was said in these private meetings unless you agree.
At times, the conciliator may think it is important to relay a matter raised in private conference to the other party, but will always discuss this with you first.
The complainant and respondent meet together with the conciliator.
After opening remarks and laying down the rules of engagement and ensuring all parties are comfortable with the other parties representation, the conciliator gives both parties an opportunity to present their case and complaint.
After a right of reply, it is time to put all offers on the table in an effort to resolve the matter.
The conciliator may assist the parties to discuss the ways in which the complaint may be resolved. This may take place with both sides together or in private conciliation.
At any time during the process you can ask for a break or some private time to discuss your matter or the offer of settlement with the conciliator or with your advocate or representative.
Once the parties come to an agreement in relation to a settlement, a Deed of Settlement may be drafted to reflect the details agreed upon.
How are complaints resolved?
How a complaint is resolved will depend on what the complaint is about, and what the complainant and respondent are prepared to agree on.
For example, complaints may be resolved on the basis of:
an apology or a statement of regret;
an agreement to introduce policies to prevent discrimination;
an agreement to provide anti-discrimination training;
reinstatement to a job or an offer of employment; and/or
financial compensation for monetary loss or injury to feelings.
What happens when a complaint is resolved?
If a complainant and respondent can agree on a way to resolve the complaint, this is usually written up in a ‘Conciliation Agreement’, or Deed of Settlement.
A draft Agreement is drawn up for all parties to check, date and sign.
The Agreement is executed once all elements of the agreement are completed.
The parties can decide whether the terms of agreement are to be kept confidential.
Where a complaint is resolved, the President of the Commission will finalise the complaint.
What happens if the complaint is not resolved?
If a complaint is not resolved at a conciliation conference, the conciliator may help negotiations continue for a short period of time, which often has a capped limit of time placed on it.
If a complaint cannot be resolved, further negotiations can take place outside of the formal conciliation process, but is often done ingot faith, and is purely voluntary.
If the President is satisfied that a complaint cannot be resolved or that the complaint should not continue for some other reason, the complaint will be terminated.
When a complaint is terminated, the complainant may be able to take the matter to the Federal Circuit Court or the Federal Court of Australia.
The complainant has 60 days to apply to the court.
In some situations, a complainant will need to get the court's permission (seek leave) to take the matter to court.
How do I prepare for conciliation?
To ensure that you are well prepared for your conciliation, make sure that you have drafted an Affidavit with all the relevant facts, such as the dates, times, persons involved, what happened, who said what, how you felt and what impact it had on you, and you have attached all supporting documentation.
Ensure that your application for conciliation is all in order, accurate, reflects the facts, is supported by evidence, and that you have copies of all of your documents.
Ensure that you have set aside the whole day of conciliation, dedicating the time to the process, preparation and post-conciliation debrief, as required.
The Commission may be unable to reschedule the conciliation and so it is important that you make every effort to participate on the scheduled date.
Ensure that you inform the conciliator the day before the conference if there are any change to who will be attending the conciliation.
Ensure that you understand how the law may apply to the complaint and what might happen if the complaint cannot be resolved.
Prepare a summary of your position and your arguments, as you will not be given much time to speak. Written submissions are the primary source of reference for all parties to the conciliation, including the conciliator.
Think about what you want to say about the complaint and what you are willing to settle on as a form of agreement.
It is important that you are prepared to listen to the other side and treat everyone with respect.
Although complainants and respondents will disagree about the facts of the matter, they can agree that it is better to try to resolve the complaint than go to court.
Think about how you would like the complaint to be resolved and be prepared to explain why you think this is fair. Try to have a number of different options roared for negotiations towards a settlement.
Think about how far you may be willing to compromise to resolve the complaint.
Prepare, be respectful, try to be clam, and do your best.
Trust the system, and put your best foot forward.
Do you have a mediation or conciliation need in family law,
employment law or human rights law?
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successful compensation settlement!
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