Conciliation Frequently Asked Questions
Updated: 21 hours ago
Understanding Conciliation: How Tribunals, Commissions, and Workplaces Use This Dispute Resolution Process to Achieve Early Resolution
What is Conciliation?
Why is Conciliation Important?
Conciliation vs. Mediation
What skills does a conciliator need?
Organisational Practices of Conciliation
Conciliation is a dispute resolution process used by many Tribunals and Commissions such as the Fair Work Commission and Human Rights Commission. Here's is an article answering some of the frequently asked questions about Conciliation.
At the top of the Conciliation Frequently Asked Questions list is: What is Conciliation?
Conciliation is a facilitative Dispute Resolution (‘DR’) process where an impartial interventor (the conciliator) brings disputing parties together to discuss key issues and explore settlement options, without the conciliator making binding decisions. 1 The process operates under legislative or binding rules, requiring compliance with norms and standards specific to the context. 2
The roles of conciliators vary depending on the context, such as relevant legislation, contracts, and industry standards. 3 However, the process generally involves a conciliator utilising their specialist knowledge and experience to evaluate positions, offer advice, and clarify issues to help parties resolve the dispute. 4 Additionally, conciliation entities may have responsibilities beyond conciliation, such as facilitation, advisory or enforcement functions. 5
Why is Conciliation important?
Conciliation is widely used in both statutory entities and the private sector across Australia, with over 23,000 conciliations annually, the majority resulting in settlements. 6 It is applied in various contexts such as Indigenous land rights, human rights, and employment. 7 Despite early statutory recognition of conciliation in the Australian Constitution and the Conciliation and Arbitration Act 1904, conciliation was left undefined. 8 From the 1980s onwards, conciliation gained recognition as an effective complaint handling process, becoming mandated in legislative and statutory programs where unresolved disputes often proceed to adjudication. 9 Scholars have highlighted the ambiguous nature of conciliation which prompting ADRAC to publish “Conciliation: Connecting the Dots” in 2021 to clarify its process. 10 ADRAC noted that conciliators handle an average of 252 conferences annually, supported by other 100 laws. 11 Conciliation is governed by 20 Commonwealth statutes and 12 statutory bodies, alongside 96 state and territory statutes. 12
How does Conciliation compare to Mediation?
Despite conciliation and mediation often being considered similar, most conciliators view their roles as distinct. 13 The ADRAC definition of conciliation closely resembles the NMAS definition of mediation, indicating significant similarities and overlaps between the two processes. 14 A comparison can be found below. 15
What are the key stages in the Conciliation process?
The conciliation process varies across organisations but generally includes the following stages:
Preparation and Opening Statement: The conciliator explains their role, the parties’ roles, the process, and ground rules. 16
Parties’ Statements: Each party presents their view of the dispute, noting interests, needs, and resolution options. 17
Joint Exploratory Session: The conciliator recapitulates views, options, and strengths/weaknesses, encouraging direct communication and identifying interests to facilitate problem-solving. 18
Private Meetings: The conciliator meets privately with each party to reality-test alternatives. 19
Concluding Joint Session: The conciliator helps narrow issues, facilitates final negotiations, and finalises agreements or adjourns/terminates the session. 20
Ready to Transform Conflict into Understanding?
Download my free Introduction to Conciliation Ebook.
Perfect for beginners or those refining their skills, this guide offers foundational knowledge and practical strategies to navigate conciliation with confidence. Download your free copy here.
What skills does a conciliator need?
Conciliators must have training or qualifications in mediation (NMAS mediation accreditation), conciliation, or other DR forms. 21 Conciliation training includes “specialist knowledge, specialist skills, and entities provision of internal professional support”. 22 Many entities offer in-house initial training and handbooks that guide process issues specific to their organisation. 23
The conciliator plays a proactive role in the process, which includes conducting the process, controlling the information received by parties, and engaging in reality testing. 24 For instance, they assess the strengths and weaknesses of positions, identify the potential implications if no settlement is reached, and explain how the court may perceive the matter. 25
What are some organisations that use Conciliation and how is it practiced?
Numerous statutory bodies conduct conciliation. At the Commonwealth level, these include the Administrative Appeals Tribunal, the Australian Human Rights Commission, and the Fair Work Commission. 26 In Queensland, entities such as the Anti-Discrimination Commission, the Office of the Health Ombudsman, and the Land Access Ombudsman also utilise conciliation. 27
The Fair Work Commission helps resolve unfair dismissal disputes through conciliation, conducted by trained staff experienced in conciliation, workplace relations, and unfair dismissal law. 28 Typically held over the phone, parties negotiate informally without obligation to settle. 29 Representation by lawyers or agents is not required, but if used, permission must be sought if the conciliator is a Commission member. 30 Agreements reached are documented, with a 3-day cooling-off period for unrepresented parties. 31 If no settlement is reached, the dispute proceeds to a formal hearing unless the employee withdraws their application. 32
Want to Build a Team of Confident, Skilled Conciliators?
👉 Book a Free Confidential Call to discuss which process is right for your team.
Still unsure which path to take? Contact Shiv directly at contact@shivmartin.com for personalised guidance.
References
1 Laurence Boulle, ‘Conciliation and Mediation in Australia’ (2022) 32(1) Australasian Dispute Resolution Journal 23, 31.
2 Ibid.
3 Ibid.
4 Ibid.
5 Ibid 29.
6 Ibid.
7 Ibid.
8 Constitution, s 51(xxxv); Conciliation and Arbitration Act 1904 (Cth); ADRAC, ‘Conciliation: Connecting the dots’ (Final Conciliation Report, November 2021) 21 [2.1]-[2.3].
9 ADRAC (n 7) 22 [2.8].
10 ADRAC (n 7).
11 Boulle (n 1) 29.
12 Ibid.
13 Boulle (n 1).
14 Ibid.
15 Ibid.
16 Administrative Appeals Tribunal (‘AAT’), ‘Conciliation Process Model’, Conciliation (Web Page) 1 < https://www.aat.gov.au/AAT/media/AAT/Files/ADR/Conciliation-process-model.pdf>.
17 Ibid.
18 AAT (n 15) 2.
19 Ibid.
20 Ibid.
21 ADRAC (n 7) 28 [4.92].
22 Ibid 23 [4.56].
23 Ibid 34 [4.150].
24 Ibid 22 [4.42].
25 Ibid.
26 Ibid 41.
27 Ibid 42.
28 Fair Work Commission, Unfair Dismissals Workbook: Conciliation (Web Page) < https://www.fwc.gov.au/conciliation
29 Ibid.
30 Ibid.
31 Ibid.
32 Ibid.
.png)