LLB103 Lecture Notes - Lecture 6: Australian Human Rights Commission, Arbitration Award, National Database And Registration Authority
LLB103 DISPUTE RESOLUTION LECTURE 6: CONCILIATION, CASE APPRAISAL AND ARBITRATION
HISTORY OF CONCILIATION
●Formalisation in Commonwealth Constitution s 51 (xxxv) which came into force on 1 January 1901. This
specifically addressed conciliation as a forum of which would be suitable for industrial disputes.
●Conciliation and Arbitration Act 1904 (Cth)
○Prevent lockouts and strikes
○Establishment of Commonwealth Court of Conciliation and Arbitration (which was actually
unconstitutional).
■This is because according to the Commonwealth Constitution, 1 single body cannot
be vested with judicial and non-judicial powers. Refer to Boilermaker’s Case.
●Used today in particular areas
CONCILIATION - PLAIN ENGLISH MEANING
Used by different people in different contexts:
●Informal discussions between parties and external agency to try to avoid, resolve or manage a dispute
○Conciliation more broadly can be the state of manifesting goodwill and cooperation after being
reconciled
○The action of bringing peace and harmony; the action of ending strife
●In Australia, there is regrettably little consensus amongst conciliation providers as to what conciliation
means.
NADRAC DEFINITION - CONCILIATION
Conciliation is a process in which the parties to a dispute, with the assistance of a dispute resolution practitioner
(the conciliator), identify the issues in dispute, develop options, consider alternatives and endeavour to reach an
agreement. The conciliator may have an advisory role on the content of the dispute or the outcome of its
resolution, but not a determinative role. The conciliator 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 (NADRAC, 2003, p.5).
●Parties with assistance of conciliator
○Identify the disputed issues
○Develop options
○Consider alternatives
○Try to reach agreement
●Role of conciliator is an advisory of evaluative role which means that the conciliator is advising the
parties on the possible outcomes which may be reached, outcomes that are preferable, how it may be
resolved if it were to go to litigation.
SIMILARITIES BETWEEN MEDIATION AND CONCILIATION
●Mediator and conciliator are an impartial third party (although if conciliation under a statutory scheme,
conciliator is not neutral towards the law)
●Both processes identify disputed issues, develop options, consider alternatives and try to reach an
agreement
●Neither mediation or conciliation are determinative processes
●Both mediator and conciliator determine the process to be used
find more resources at oneclass.com
find more resources at oneclass.com
DIFFERENCE BETWEEN FACILITATIVE MEDIATION AND CONCILIATION
●Conciliator may have an advisory role regarding the content of the dispute - mediator does not
●Conciliator may advise on the outcome of a dispute
●Conciliator may suggest terms of settlement
●Conciliator may give expert advice on potential court outcomes
●Conciliator may actively encourage parties to reach an agreement
IS THERE A DIFFERENCE BETWEEN EVALUATIVE MEDIATION AND CONCILIATION?
●Expert/advisory mediation
●Mediator an authority figure who evaluates case based on experience of:
○Law; and
○Court outcomes
○Focus on legal rights and entitlements
●Evaluative mediator offers recommendations of how case would be decided if proceeds to court
●Some would argue not “real” mediation
For a process to be identifiable as mediation, it involves the steps of mediation. Even though there is some scope
to skip steps, a mediation generally is more characterised by those steps whereas in conciliation, there is no
requirement for a series of identifiable steps. Conciliation is often seen as more “interventionist” compared to
evaluative mediator; the conciliator advises the parties more than a evaluative mediator might.
ADVANTAGES OF LAWYERS IN CONCILIATION
● ‘Shadow of the law’ → negotiation is influenced by what the law says on that
particular topic
●Advise on what the law is (ie. legal rights)
●Stop client agreeing to unrealistic settlement
○Maintain assertiveness
○Not let them be worn down by people and process; or
●At least talk them through this and reality test
●Draft the agreement:
○Explain the agreement to client
○Consequences of non-compliance
○File the agreement in court
●Deal with second thoughts/regrets!
DISADVANTAGES OF LAWYERS IN CONCILIATION
●Particularly:
○If not familiar with dispute resolution process
○If not familiar with the relevant law
●Attempt to interfere with process and structure
○Cut through opening statements
○Request shuttle conciliation in separate rooms
●Can model adversarial behaviour
●Can entrench positions (particularly if lawyer does not know the law well enough)
●If inexperienced, won’t be assertive enough with unrealistic client
●Can give up on the negotiation process
●Can be impatient with time
WHERE DO CONCILIATIONS OCCUR?
find more resources at oneclass.com
find more resources at oneclass.com
