Conciliation

Like mediation, conciliation is a process where a neutral facilitator assists the parties. In Australia, the term is used in distinct ways by mediators and arbitrators.

In the “strict” theory of mediation, mediators only facilitate discussions between the parties and do not give advice to the parties about the law (even though many mediators are lawyers) or the basis on which the parties could settle. However, there are many situations were the facilitator of the resolution process can and should outline to the parties the legal framework in which their discussions are taking place. For example there are over 90 administrative tribunals operating in Australia, many of the largest, handle thousands of complaints each year.  It is convenient for these tribunals to employ conciliators who are knowledgeable about the tribunal’s jurisdiction and can advise the parties about what sort of orders the tribunal can make and what is the limit of compensation it can award. For this reason the conciliator’s role is seen as more directive and advisory than a person acting as a mediator.

The processes of arbitration and conciliation has a long history in Australia, being included (as Chapter XXXV) in the Australian Constitution. For many years various legislative acts required arbitrators to carry out a process of conciliation with the parties and “not make an award until the arbitrator had brought, or has used his or her best endeavours to bring, the parties to the action to a settlement acceptable to all of them”.  Many older acts still contain this requirement. Conciliation has therefore been defined as a process, “whereby a third party offers their services in order to bring about an agreement or resolution of a dispute through discussion between the two parties” (Lumb Moens & Trone, Annotated Constitution of Australia). Arbitration being a process in which an adjudicator acts judicially, any process of conciliation must therefore be carried out in the presence of all parties, unlike mediation, where private caucus can be used.

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