"Facilitator or Advisor?: A discussion of conciliator intervention in the resolution of disputes under Australian human rights and anti-discrimination law"
Jodie Ball & Tracey Raymond11
Alternative Dispute Resolution (ADR) in the context of anti-discrimination and human rights law
State and federal anti-discrimination & human rights law in Australia, as in many other countries2, provides for the resolution of complaints of discrimination and breaches of human rights by a process of conciliation. Conciliation is an alternative dispute resolution mechanism for parties to complaints in that it is an 'alternative' to more formal determination of the dispute by a court or tribunal.
Legislation however, provides no definition of conciliation and only limited direction as to the process that is envisaged. It has remained for agencies to 'put the flesh on the bones' of the legislation so to speak, in developing their dispute resolution practice.
A review of writings on ADR and practices of ADR agencies in various locations around the world, indicates that the term 'conciliation' can have very different meanings. In some circumstances 'conciliation' is used as a generic term for any consensual, non-adversarial dispute resolution process. In other instances the term is used interchangeably with 'mediation'. In Australia, conciliation has traditionally been differentiated from mediation in that conciliators are seen to have a more active role in relation to the outcome of the dispute3. The term has also been used to signify dispute resolution processes provided for by statute.
Statutory conciliation has been defined by the Australian National Alternative Dispute Resolution Advisory Council (NADRAC) as:
"................a process in which the parties to a dispute which has resulted in a complaint under statute, with the assistance of a neutral third party (the conciliator), identify the disputed issues, develop options, consider alternatives and endeavour to reach an agreement. The conciliator has no determinative role on the content of the dispute or the outcome of its resolution, but may advise on or determine the process of conciliation whereby resolution is attempted, and may make suggestions for terms of settlement, give expert advice on likely settlement terms, and may actively encourage the participants to reach an agreement which accords with the requirements of that statute."4
This definition is accepted by many anti-discrimination agencies, including HREOC, as descriptive of its ADR process.
However, within this broad definition there is significant scope for variations in practice. The aim of this paper is to explore some of these variations with reference to ADR theory.
Classification of ADR processes
Writings on ADR classify ADR processes as either 'facilitative', 'advisory' 'determinative' or 'hybrid' in nature.
Facilitative processes are defined as ones where the ADR practitioner:
"..has no advisory or determinative role on the content of the dispute or the outcome of its resolution, but may advise on or determine the process whereby resolution is attempted"5
Advisory processes are defined as ones where the ADR practitioner:
"...investigates the dispute and provides advice as to the facts of the dispute, and, in some cases, advice regarding possible, probable and desirable outcomes and the means whereby these may be achieved".6
Determinative processes are defined as ones which involve an ADR practitioner:
"... investigating the dispute (which may include the hearing of formal evidence from the parties) and making a determination, which is potentially enforceable, as to its resolution."7
There is recognition from NADRAC and in ADR literature generally, that ADR processes cannot be neatly classified into these three categories. It is acknowledged that processes may be hybrid in nature with the ADR practitioner playing multiple roles such as facilitating discussions as well as providing advice on the merits of the dispute8.
Resolving human rights and anti-discrimination complaints - a hybrid ADR process?
While NADRAC has classified 'conciliation' and 'statutory conciliation' as facilitative processes9 other authors have classified conciliation as an advisory process10. Examination of the practices of agencies administering anti-discrimination and human rights legislation in various locations around the world supports a view that the ADR practice of such agencies is best described as a hybrid process in which the role of the ADR practitioner can be both facilitative and advisory in nature. The characteristics that point to an advisory component to the process include:
- in many agencies an investigation process precedes conciliation and complaints are required to meet a substance threshold before moving onto conciliation. Inherent in this is an agency/officer evaluation of the facts of the dispute with reference to the law which is feed into conciliation proceedings;
- in many agencies the person who presides over the conciliation process has also undertaken the investigation of the complaint and will have detailed knowledge of the evidence and information provided by both sides;
- the perception that conciliators are experts in discrimination law and experienced regarding types of outcomes that can be achieved at conciliation;
- conciliation takes place in a statutory context and within the "shadow of the law" which means that a background for discussions and decisions concerning settlement of the complaint is how the formal legal system and the relevant court or tribunal would resolve the matter and what the implications for both sides will be if they have to litigate the matter;
- conciliators are charged with administering the legislation and therefore are seen to have a legitimate role in intervening in settlement terms to uphold legislative objectives;
- the role of some agencies in providing legal advice or acting for complainants in the subsequent determination process which means that the conciliator's role may involve suggesting options for resolution to prevent the matter being taken further by the agency.
The advisory component of the conciliator role in this context may take the form of advice in relation to the law and the relationship of the law to the facts in the complaint as presented to the agency and more controversially, advice in relation to resolution outcomes.
It is important to also acknowledge that intervention in outcomes by ADR practitioners can be both indirect and direct. ADR practitioners can influence outcomes indirectly by the way in which they structure and conduct the process11, assist parties identify and explore options12, reframe comments made by parties and convey messages in any shuttle negotiations.13 Practitioners can also directly intervene in outcomes by making suggestions for possible settlement terms, giving expert advice on likely settlement terms and in some cases, recommending settlement terms.
If it is accepted that conciliation in the human rights and anti-discrimination context is best defined as a hybrid facilitative-advisory ADR model, it is helpful to consider the variables that influence moves from a facilitative to advisory approach and how these variables will impact on the nature and extent of the conciliator's advisory role.
Variables that influence approaches to conciliation
Variations in approaches arising from agency role
Agencies administering human rights and anti-discrimination law can be differentiated in terms of the role that the agency may play if a complaint can not be resolved through the ADR process.
Some human rights agencies have a statutory role to provide legal assistance to, or advocate on behalf of complainants before associated courts/tribunals where the complaint has been determined to be substantive and the agency has been unable to facilitate a resolution of the complaint14. Where an organisation has such a role, it is likely that the approach to dispute resolution will vary at different stages of the complaint process15. For example, early attempts at resolution after no, or limited, investigation are likely to be facilitative in nature. Resolution attempts following more detailed investigation may be more advisory in nature. If resolution is not achieved at this stage, the matter may be passed for formal assessment by legal officers, Commissioners or Proceeding Commissioners with a view to determining the likely success of the claim at the associated court or tribunal. Where complaints are assessed to be litigation worthy, officers or Proceedings Commissioners may facilitate a highly advisory resolution process in which they provide an assessment of the case at law and advise of appropriate resolution outcomes. This may take the form of the agency considering the likely outcome that would be achieved at court, with reference to case precedent, and suggesting that the respondent consider resolution of the complaint on these terms to avoid subsequent litigation16.
In the Australian context, and in relation to the three pieces of federal anti-discrimination law17, HREOC does not have a role to hear and determine a complaint or to advocate for the parties in subsequent legal action if conciliation is unsuccessful18. Therefore, HREOC's conciliation process in relation to these matters, while it may include some advisory elements, does not mirror the highly directive intervention into outcomes evident in latter stages of the complaint process in some overseas jurisdictions19.
With reference to Australian state and territory anti-discrimination law, it is noted that agencies in Western Australia20 & South Australia21 have a statutory role to, on request, assist the complainant to present their case to the associated tribunal where the complaint has been determined to be substantive and the agency has been unable to facilitate a resolution of the complaint.
Variation due to complaint processes
Where an agency has a practice of conducting minimal investigation into complaints and pursuing conciliation with the majority of claims or pursuing resolution very early in the complaint process, the resolution process is likely to be more facilitative in nature.
In contrast, agencies which adopt more rigorous investigation requirements and only undertake conciliation after an investigation has determined that the complaint has met the relevant 'substance threshold' are more likely to utilise a hybrid facilitative-advisory model. It is also likely that the higher the substance threshold used by the agency and the more lengthy the investigation process, the more advisory as to outcome the agency will be22.
In the HREOC context, while conciliation may be undertaken at any time in the complaint process, it is generally undertaken after completion of an investigation23 and after determination that there is no basis on which to recommend that the complaint is 'lacking in substance'. Legal consideration of the term 'lacking in substance' at a federal level has indicated that this is a relatively low threshold24. Where conciliation is attempted prior to formal investigation, the conciliator's approach is likely to focus on explaining the parameters and intention of the law, assisting the parties to articulate the complaint and response and find a practical solution to the conflict at the centre of the complaint. In contrast, on conclusion of an investigation the conciliator may be more interventionist in terms of providing information on settlement and hearing precedent in similar cases and assisting with generation and testing of settlement options.
Increasingly, anti-discrimination law in Australia is becoming more prescriptive in relation to how complaints are handled and the time frames in which certain actions need to be undertaken. For example, under recent amendments to the Anti-Discrimination Act 1991 (Qld), once a complaint is accepted, the Commissioner must promptly notify the respondent and within 28 days the respondent is required to either provide a response or request an early conciliation conference. If early conciliation has not taken place or a response has not been provided, a compulsory conciliation conference must be held within the next 14 days25. A practical outcome of this legislative scheme is that a large number of matters are likely to proceed to conciliation without a formal response being provided. Accordingly, a less interventionist and more facilitative approach to resolution would generally be expected in circumstances where no written reply to a complaint has been received and no determination of 'substance' has been made.
Variation due to the nature of the complaint
Approaches to conciliation may vary according to variables related to the complaint such as the issue raised and the apparent merit of the claim.
For example, regardless of when in the process conciliation is attempted, where there is a strong prima facie claim of discrimination and/or where there is very clear and relevant case precedent on the issues raised in the complaint, a conciliator may be more advisory in terms of providing an assessment of the case in relation to the law and more interventionist in suggesting outcomes that accord with case precedent and the objectives of the legislation they are charged with administering. In contrast, where the evidence in relation to a complaint is equivocal and/or there is minimal or no case precedent, a facilitative approach to conciliation is more likely.
Variations due to the needs and wishes of the parties
Approaches to conciliation and the level of conciliator intervention in content and outcome also reflect the needs and wishes of the parties to the dispute.
For example, where parties are represented by advocates or lawyers who are well versed in anti-discrimination law and associated procedures, a conciliator is likely to be less advisory and more focused on facilitating communication and negotiations to ensure a fair and productive process and assisting parties to overcome barriers to resolution. In doing this the conciliator may still play an active role in suggesting settlement options for consideration and facilitating discussions to assist the parties test the feasibility of these options26.
Conciliators in the human rights and anti-discrimination have, and are seen to have, specialist knowledge and experience in relation to the law and how associated disputes have been resolved informally and before the courts. Understandably then, parties and advocates who are not experienced in this area may actively seek conciliator input to assist their understanding of the law and how the matter may be resolved.
The parameters of the conciliator's advisory role in the anti-discrimination and human rights context
The advisory component of the conciliator's role in the human rights and anti discrimination context may take the form of advice in relation to the law and the relationship of the law to the facts and may also include advice regarding resolution outcomes. It is this later aspect of the conciliator's advisory role that we now wish to focus on.
As noted in the previous section, direct conciliator intervention in relation to resolution outcomes may range from the provision of information about possible outcomes to advice about desirable outcomes.
In this section we will consider the arguments supporting conciliator intervention into resolution outcomes and explore the principles that provide guidelines and limits for this interventionist role.
Arguments supporting conciliator intervention in resolution outcomes
The notion of the conciliator having input into resolution outcomes can be seen as justified in terms of the conciliator's responsibility to ensure a fair and just dispute resolution process with reference to public standards of fairness and justice as articulated in associated legislation and legal precedent.
Firstly, the law under which the conciliator operates has stated objectives and may specifically provide directions to ensure that related administrative processes support the broader objectives of the law. For example in the HREOC context, the foundation legislation requires the Commission to:
".....ensure that any settlement. ...reflects recognition of human rights and a need to protect those rights."27
Similarly each piece of Commonwealth anti-discrimination law contains legislative objectives which conciliators need to keep in mind when performing functions under that Act. For example, the objectives of the Sex Discrimination Act, 1984 include to eliminate as far as possible discrimination against persons on the ground of sex, marital status, pregnancy or potential pregnancy in many areas of public life and to promote recognition and acceptance within the community of equality between men and women.28
Additionally, in light of potential power imbalances between parties in human rights and anti-discrimination disputes, conciliator intervention in outcomes can be seen as justified with reference to the need to ensure that matters are not resolved on terms which vary markedly from what would be considered a fair resolution before the associated court or tribunal29.
Any rationale for conciliator intervention into outcomes must, in this context however, also be reconciled with requirements for the conciliation process to accord with:
- legal principles of 'natural justice' and 'procedural fairness' as they may be relevant to the specific ADR context; and
- principles of 'consensuality' and 'neutrality' that underpin the legitimacy of ADR as a fair and just dispute resolution mechanism.
Natural justice and procedural fairness
Broadly speaking, the principle of natural justice requires that a person is entitled to know allegations/adverse material against him or her and given the opportunity of reply. Procedural fairness requires that decision makers and those involved in procedures which relate to decisions affecting rights must not be biased or appear to be biased.
In the Australian anti-discrimination context, the Federal Court has determined the applicability of these legal principles to HREOC's conciliation process. Specifically, in the case of Koppen v Commissioner for Community Relations (1986) EOC 92-17330, the court found that the person against whom a complaint is made is entitled to have an impartial conciliator preside over any attempted resolution of the matter.
The requirements of procedural fairness and natural justice, therefore, provide guidelines and limitations for conciliator intervention into outcomes where such principles are seen to apply.
These principles require that both indirect and direct intervention into resolution outcomes should not be the manifestation of personal biases or values of the conciliator, or seen to be such. Rather, intervention must be undertaken in accordance with statutory authority and with reference to relevant facts, law and legal authority. For example, conciliator direction to a respondent about settlement terms that should be offered and/or recommendations to a complainant to accept a particular resolution proposal undertaken without relevant statutory authority or in circumstances in which the process has not allowed for full consideration of facts and evidence, will be seen as generally unfair and lead to perceptions of bias by one or both of the parties.
Consensuality and neutrality
The legitimacy of our formal justice system as a dispute resolution mechanism is based on notions of the impartiality of decision makers and the public, reviewable nature of process and outcomes which aim to ensure fairness and justice. By contrast, private and confidential ADR processes such as mediation and conciliation, must base their legitimacy on notions of party consensuality and ADR practitioner neutrality31. That is, in theory, the ADR process is seen as fair and just if parties consent to the process and are in control of decision making. These principles are also applicable to advisory and determinative ADR processes where legitimacy is based on party agreement to participate in such a process32.
These principles of 'consensuality' and 'neutrality' highlight the importance of party control as a defining feature of ADR and provide guidelines and limits on conciliator intervention into resolution outcomes.
While the term 'neutrality' has many layers of meaning in the fields of mediation and conciliation, it is best understood in terms of two key elements. The first element of neutrality is the requirement that ADR practitioners should not have a personal interest in the outcome of the dispute. Clearly, it is inappropriate for an ADR practitioner to influence the outcome of a dispute to achieve a personal advantage for themselves or an associate. Secondly, the concept of neutrality requires that the ADR practitioner conduct the proceedings in an unbiased or impartial way, that is, in a way that does not privilege one party over the other33. As has been highlighted by a number of authors, impartiality should be seen as entailing both negative and positive duties, in that it not only requires that the practitioner restrain from imposing personal bias, but also requires practitioner intervention to address inequity between the parties which would detract from a fair resolution process34.
The concept of neutrality presents a challenge in the anti-discrimination context in light of the fact that conciliators have a responsibility to uphold the objectives of the relevant legislation and as such, are not indifferent to the outcome of the complaint. This professional interest in the outcome of the dispute would not, however, be problematic where any such interest is apparent and the parties participate in full knowledge of this35. Further, an obligation to uphold the purposes of the law does not necessarily equate to the conciliator becoming an advocate for either party or reaching a conclusion that the respondent has breached the legislation.
The concept of neutrality reinforces principles of natural justice and procedural fairness in that it requires that conciliator interventions which impact on outcomes should not be driven by, or be perceived to be driven by, the personal biases of the conciliator. Additionally, any conciliator intervention to deal with inequity between the parties must be undertaken with care and skill so to ensure it is not seen as advocacy for one party over another, but rather as action to enable substantive fairness of process and outcome through maximising the involvement and control of both parties.
These principles of consensuality and neutrality also require that conciliator interventions into outcome should not unreasonably negate party control in terms of limiting party ownership of outcomes or the ability for parties to achieve outcomes which are important to them. This is particularly relevant to the human rights and anti-discrimination context where benefits of ADR are seen to include firstly, the potential empowerment of disadvantaged sections of the community through involvement in the process and outcome of resolution and secondly, the inherent flexibility of the process which enables parties to achieve outcomes that are reflective of their needs and interests and which may not be available through legal forums36.
In summary, while conciliator interventions into outcomes in the human rights and anti-discrimination context may be seen as justified with reference to ensuring fairness in broader terms as represented by law and legal standards, any such advisory role must be undertaken with reference to understandings of fairness that emerge from the legal principles of natural justice/procedural fairness and the concepts of consensuality/neutrality, as foundational principles of ADR. These latter principles provide guidance for the advisory role of the conciliator in that they require:
- a conciliator's obligations to the law and any associated interest in outcomes arising from the legal and agency context to be disclosed to the parties;
- that indirect and direct conciliator interventions into outcomes are not driven by the personal biases of the conciliator but are based on, and understood by the parties to be based on, enabling substantive fairness;
- that conciliator interventions into outcomes are in accord with the conciliator's statutory role, the facts and level of evidence before the agency and relevant legal authority; and
- that conciliator interventions into outcomes are undertaken in a manner which reinforces party control and in particular, the ability of parties to obtain outcomes which address their relevant needs and interests.
In conclusion, we will briefly consider how conciliator obligations to the law and broader standards of fairness and justice are reconciled with principles of natural justice/procedural fairness and party control within HREOC's particular legal and procedural context.
While the model of conciliation utilised by HREOC may have advisory components and the approach to intervention in relation to outcomes will vary depending on the nature of the issues and parties, HREOC conciliators are not highly interventionist in resolution outcomes in the manner of some overseas agencies. This is in part due to differences in the role and procedures of the agency, but also reflects HREOC's recognition of the value of party involvement and control in ADR in this context.
Regardless of when conciliation takes place, HREOC conciliators are seen to have a legitimate role to intervene to ensure a fair resolution process as such intervention is considered central to the achievement of fair and just outcomes. HREOC is of the view that power differentials between parties in the context of anti-discrimination and human rights disputes must be attended to if the process is to be just and fair and such intervention is supported by the law37. For example, conciliators may use a range of techniques to contribute to substantive equality of process such as:
- adaptation of the process, for example by increasing the informality of the process or utilising techniques such as shuttle conferencing;
- provision of interpreters or other aids where necessary to enable adequate participation; and
- control of attendance.
In accordance with principles of natural justice and procedural fairness, any such intervention to enable substantive equality of process must, however, be conducted in a way that avoids perceptions of conciliator bias or favouritism toward one party. This will usually involve explanation to parties that the purpose of any different treatment is to maximise both parties' understanding and involvement in the process and thus contribute to a fairer and ultimately more effective, resolution process.
As HREOC does not determine whether there has been a breach of the law and complaint investigation does not involve the collection and examination of all relevant facts and evidence prior to attempted resolution, the HREOC conciliator is not highly directive as to outcome. The HREOC conciliator does not tell a complainant what they should ask for or advise a respondent what they should offer. Nor does the conciliator calculate the amount of compensation that may be due to the complainant and present this as an appropriate start or end point of negotiations. Rather, the role of the HREOC conciliator in terms of direct intervention into outcome focuses on providing information about possible settlement options and facilitating the resolution process to ensure parties are able to make informed choices about settlement terms38. The HREOC conciliator's role can include providing information to the parties about how other factually similar matters have been resolved or determined and where relevant, for example where parties are unrepresented, providing information about how compensation may be calculated or how other alleged loss may be remedied. The HREOC conciliator may also put forward resolution options for the parties to consider which may further the broader objectives of the legislation. However, the conciliator is required to ensure that any such intervention is not directive and is undertaken in a manner which avoids perceptions of bias.
HREOC's approach recognises that a fair and just outcome should be understood not only in terms of decisions made by courts or tribunals but also in terms of what the parties believe to be fair and just in the circumstances. Accordingly, HREOC conciliators are encouraged to utilise interest based negotiation skills, especially in the preparatory stages of a conciliation process, to assist parties explore outcomes that address their needs and interests39.
More direct conciliator intervention into outcomes would only be seen as acceptable where an outcome proposed by the parties appears to contravene the purposes of the legislation. An example of this would be where a proposed term of settlement appears to subject the complainant to discrimination or seeks to take away other statutory rights. In such circumstances the conciliator would advise the parties of their concerns and their inability to continue to facilitate resolution on such terms.
HREOC's approach aims to balance legislative purpose and broader concepts of fairness and justice with notions of party empowerment by facilitating an ADR process which assists parties consider the broader objectives of the law and potential legal remedies, while also encouraging parties to achieve outcomes they are satisfied with.
The efforts made by HREOC to find a suitable balance between these ideals is reinforced by recent research on HREOC's conciliation process which revealed that there were high levels of party satisfaction with outcomes, high rates of compliance with settlement terms, low levels of perceived conciliator bias and high levels of perceived control over settlement terms40. A review of outcomes achieved in the HREOC conciliation process also indicates that a range of systemic outcomes which further the objectives of the legislation are sought41 and obtained and preliminary considerations of financial outcomes obtained at conciliation do not support a view that these outcomes are unfair with reference to awards of courts in similar matters.42
This paper has outlined arguments for classification of conciliation in the human rights and anti-discrimination context as a hybrid facilitative- advisory ADR model and has highlighted the manner in which the parameters of the advisory role in this context can vary with reference to variables such as the legal and procedural framework of the dispute, the nature of the dispute and parties' needs and interests.
More specifically, the paper has explored key issues related to advisory ADR in this context and highlighted the particular challenges for conciliators in reconciling legislative purpose and broader concepts of fairness and justice with notions of party empowerment and self determination that are central to the ideological framework of ADR.
While the issues discussed in this paper have particular significance for the practice of statutory conciliation, they can also be seen as having relevance to the broader ADR field and the ongoing challenges of facilitating a fair and just dispute resolution process.
- Jodie Ball is a Principal Investigation/Conciliation Officer and Tracey Raymond is Principal Training & Policy Officer, Complaint Handling with the Australian Human Rights Commission. The views expressed in this paper are the authors' own and do not necessarily reflect the views of the Commission. The authors can be contacted by e-mail firstname.lastname@example.org
- See for example anti-discrimination and human rights law in the United States, Canada, South Africa, Hong Kong and Fiji.
- See Astor, H & Chinkin, C Dispute Resolution in Australia, 2nd Edition, Butterworths, 2002 pp. 85- 86. See also discussion of conciliation in "Review of the adversarial system of litigation: ADR - its role in federal dispute resolution" Australian Law Reform Commission Issues Paper 25, June 1998. Alternatively, Boulle, L in Mediation - Principles, Process and Practice, Butterworths, 1996 argues that there are insufficient differences between conciliation and mediation to justify distinct definitions and what is more important is understanding what is meant by the terms in particular contexts.
- Alternative Dispute Resolution Definitions, NADRAC, March 1997 pg. 7
- ibid pg. 5
- ibid pg. 9
- ibid pg.10
- Consider for example ADR processes such as Early Neutral Evaluation, Med-Arb and Fact-Based Mediation
- Alternative Dispute Resolution Definitions op cit pg.7
- See Sourdin, T Alternative Dispute Resolution, Lawbook Co, 2002 pp.27-28
- Cobb & Rifkin argue that the structure of a mediation session allows one story, the first story told, to structure the grounds on which discussion will take place. Cobb, S & Rifkin, J "Practice and Paradox: Deconstructing Neutrality in Mediation", Law & Social Inquiry, V.16, No.1 Winter 1991, pp. 56 - 59.
- Research in the particular context of divorce mediation found that while not openly supporting particular options, mediators used a technique they called 'selective facilitation' where more opportunities were created to discuss the options preferred by the mediator. See Greatbatch, D & Dingwall, R Selective Facilitation: Some Observations on a Strategy Used by Divorce Mediators" (1989) 23 Law and Society Review pg. 613.
- See for example, the discussion in Boulle, L op cit pp. 105 - 110 on the use of separate meetings and the effect this has on conciliator influence and Thirgood, R "Mediator Intervention to Ensure Fair and Just Outcomes", Alternative Dispute Resolution Journal, May 1999 pp 146 -149.
- See for example, the practices of the United States Equal Employment Opportunity Commission, the Human Rights Commission of New Zealand, the Fiji Human Rights Commission and the Hong Kong Equal Opportunities Commission
- See more detailed discussion of the complaint processes of various overseas agencies in Raymond, T & Ball, J "Alternative dispute resolution in the context of anti-discrimination and human rights law: reflections on the past and directions for the future" paper presented at the National Mediators Conference, Brisbane Australia - May 2000.
- These agencies may also use different terminology in their administrative procedures to refer to resolution at different stages of the complaint process which is reflective of moves from facilitative to more advisory ADR models. For example, in the United States EEOC resolution attempts prior to investigation are administratively termed 'mediation', resolution attempts after investigation are known as 'negotiated settlement' and differentiated from 'conciliation' which occurs after full investigation and prior to any litigation by the agency. The Canadian Human Rights Commission also differentiates 'early resolution' - a process which occurs during the investigation process from 'conciliation' - a formal process that occurs after completion of an investigation.
- Racial Discrimination Act 1975 (Cth), Sex Discrimination Act 1984 (Cth) and Disability Discrimination Act 1992 (Cth)
- Federal law does however provide for Commissioners to assist the Federal Court as amicus curiae in discrimination matters. An amicus curiae is a "friend to the court" who assists the court on points of law in a particular case. Amicus are generally not parties to the proceedings, do not file pleadings or lead evidence and they many not lodge an appeal.
- While HREOC does have a determination and reporting role in relation to human rights and discrimination complaints lodged under the Australian Human Rights Commission Act, 1986 these complaints are handled in a similar manner to unlawful discrimination matters in that conciliation is attempted where it is determined that the complainant has reach the requisite substance threshold. There is, however, an option for a more interventionist model of conciliation in these matters once the President has formed a tentative view or is tending to the view that there has been a breach of the law.
- See section 93(2) of the Equal Opportunity Act, 1984 (WA)
- See section 95(9) of the Equal Opportunity Act, 1984 (SA)
- For example, agencies such as the United States Equal Employment Opportunity Commission define the purpose of the investigation to determine if there is 'probable cause' to believe that the allegation is true and as such, to determine if the mater is litigation worthy prior to proceeding to conciliation. See further discussion of the threshold utilised by Australian Human Rights Commission agencies in Raymond, T & Ball, J "Alternative dispute resolution in the context of anti-discrimination and human rights law: reflections on the past and directions for the future" op cit.
- Conciliation may be attempted early in the HREOC complaint process where, for example, there is some urgency parties due to ongoing detriment or illness. A relevant situation may be where harassment is alleged and the parties are in an ongoing working relationship or a situation relating to a child's schooling.
- A complaint would ordinarily be seen to be 'lacking in substance' where it "....presents no more than a remote possibility of merit or ...does no more than hint a just claim" Assal v Department of Health Housing and Community Services (1992) EOC 92-409
- See section 143 of the Anti-Discrimination Act 1991 (Qld)
- The involvement of legal practitioners and advocates in conciliation varies significantly across anti-discrimination agencies in Australia. HREOC's usual practice is to allow advocates or legal representatives to attend conciliation conferences where this is seen as contributing to a fair and effective process. Recent research into HREOC's conciliation practice found that 51% of complainants and 44% of respondents had representation (legal and non legal) in the conciliation process and complainants and respondents had the same level of legal representation (41%). See Review of Changes to the Administration of Federal Anti-Discrimination Law, HREOC 2002, pg.15
- Section 28 of the Australian Human Rights Commission Act, 1986
- See section 3 of the Sex Discrimination Act, 1984 (Cth)
- See for example discussion in Thornton, M "Equivocations of Conciliation: The Resolution of Discrimination Complaints in Australia" (1989) 52 Modern Law Review pg.742
- The complaint in this matter was made under the Racial Discrimination Act 1975 (Cth) and alleged that Indigenous people were denied entry to a nightclub in Cairns. During an unsuccessful conciliation conference the conciliator, who was herself Indigenous, had said in front of the respondent that her children had also been denied entry to the nightclub. In considering an application under the Administrative Decisions (Judicial Review) Act 1977 (Cth) Justice Spender held that the rules of natural justice and procedural fairness applied to the Commission's conciliation process because the certification that conciliation has failed exposed the respondent to the hazard of legal proceedings and therefore the respondent's 'interests' were affected by the failure of the conference. Justice Spender found that the statement made by the conciliator would lead to a reasonable apprehension that the conciliator was biased and not unprejudiced and impartial.
- See discussion in Astor, H 'Rethinking Neutrality: A Theory to Inform Practice' (2000) 11 Australasian Dispute Resolution Journal Pt 1, 73-74
- It is noted that highly advisory or determinative ADR process, while conducted in private, may include elements of the formal justice system such as formal consideration of evidence and mechanisms for reviewing decisions.
- These core requirements of neutrality are reflected in the NADRAC publication: A Framework for ADR Standards April 2001, pg 112 which states that: 'ADR practitioners need to demonstrate independence and lack of personal interest in the outcome, so that they approach the subject matter of the dispute with an open mind, free of preconceptions or predisposition towards either of the parties. The importance of exhibiting lack of bias is that the parties can be satisfied that they can trust the ADR practitioner to conduct the process fairly".
- Cobb, S & Rifkin, J op cit and Astor, H op cit.
- NADRAC notes that neutrality requires that the ADR practitioner disclose to all parties any interest the practitioner may have in the outcome of the particular dispute. NADRAC, A Framework for ADR Standards op cit pg.112
- For example, outcomes that may be of significant value to complainants such as apologies, implementation of training programs, policy or practice changes may be difficult to achieve in a court process in which compensation is the dominant legal form for addressing harm.
- Section 46PK(3) of the HREOCA states.. "The person presiding at the conference must ensure that the conduct of the conference does not disadvantage either the complainant or the respondent." Additionally sections 46PK(5) & (6) of the HREOCA provide that people with disabilities are able to have another person attend a conciliation conference on their behalf or nominate an another person to assist them at the conference.
- HREOC has a range of strategies to assist parties to participate in the conciliation process and make informed decisions. This includes provision of detailed written and verbal information on the conciliation process and the associated court process, availability of a DVD/ video to assist parties prepare for conciliation, provision of de-identified information on issues and outcomes of other conciliations provided in Commission publications and in the Conciliation Register available on the HREOC website - www.humanrights.gov.au
- A range of ADR skills are used to assist the parties identify needs and interests and from these development settlement options including, active listening, strategic questioning, hypothesising and role reversal.
- The research found that the vast majority of participants in conciliation (82%) reported that they were satisfied with settlement terms with some 41% indicating they were highly satisfied. Complainants and respondents recorded the same high levels of satisfaction with outcomes. Ninety percent of parties reported that there had been full compliance with conciliation settlement terms and a further 7% reported part compliance. Only 4% of parties were of the view that the conciliator was bias against them and only 9% of parties felt they were not given the opportunity to fully consider settlement proposals. Raymond T and Georgalis, S "Dispute resolution in the changing shadow of the law: a study of parties' views on the conciliation process in federal anti-discrimination law" ADR Bulletin, Vol. 6 Number 2, June 2003.
- For example, a recent HREOC report on sexual harassment complaints finalised in 2002 found that of matters where the remedies sought were specified 38% of complainants sought the introduction or enforcement of prevention policies. Sexual Harassment: A Bad Business. Review of Sexual Harassment in Employment Complaints 2002, HREOC, 2003 pg. 29
- For example, the median amount of financial compensation received by complainants in sexual harassment in employment complaints before HREOC in the 2002 calendar year was $6,250. (Sexual Harassment: A Bad Business. Review of Sexual Harassment in Employment Complaints 2002, HREOC, 2003 pg.30) The median amount of compensation for sexual harassment in employment cases before the courts in the same period was $7,500. In the 2002-03 reporting year the HREOC conciliation register for complaints under the Sex Discrimination Act, 1984 (Cth) indicated that in 97 of 106 conciliated matters where HREOC was aware of the outcome, 92% included financial compensation as a term of settlement and the average amount of compensation obtained was $9,034. In this same period the Federal Court of Australia and the Federal Magistrates Court made four substantive decisions under the Sex Discrimination Act, 1984 (Cth), two of which included an award of financial compensation and the average amount awarded by the courts was $12,412.86.