Finding Conciliation: ADRAC Discovers Quiet Achievers

In a major study on conciliation, the Australian Dispute Resolution Advisory Council (ADRAC) is finding that conciliators make up one of the largest, quietest and most diverse groups of dispute resolution practitioners in Australia.

ADRAC’s work was initially focused on resolving longstanding concerns about the definitions of conciliation. Traditionally, conciliation is considered to be a species of evaluative mediation conducted by a person attached to a court or tribunal but ADRAC has found that (i) some legislative provisions for conciliation do not conform to that description; and (ii) the essential characteristics of conciliation are more elusive than describing the process as ‘evaluative’.

During its work, however, ADRAC has uncovered unexpected and interesting features of ADR processes described as conciliation in various laws. ADRAC is undertaking a comprehensive review of ADR processes under State and Commonwealth laws that are called conciliation.

The use of the term ‘conciliation’ is basic in the law of Australia. It is used to express part of the allocation of power to the Commonwealth in s 51 xxxv of the constitution which provides that:

“The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to…conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State.”

From the commencement of industrial law since federation, conciliation played a major role in industrial management. ADRAC however is finding that in one form or another, in a much larger range of topics than industrial disputes, Australian parliaments (both State and Commonwealth) make statutory provision for dispute resolution processes frequently described as conciliation. Conciliation has been applied with great frequency to areas of dispute or social disharmony that parliaments are sufficiently concerned about to legislate for a system of resolution and policies that apply to conciliated resolution.

Such considerations are also leading to consideration of what might be meant by the expression ‘private conciliation’ and whether conciliation might exist in privately regulated dispute as in sport, churches or other institutional rule-making settings.

ADRAC’s work is being conducted in stages. It has conducted a literature review and meetings with conciliators. It is examining institutional websites of statutory entities using conciliation. It will conduct surveys, issue a discussion paper and publish its findings.

Three interesting points have emerged. The first is the large scale of the conciliation field. Across the various fields of conciliation, very large numbers of conciliators manage and resolve vast numbers of disputes. The second is the apparent disparate processes styled as ‘conciliation’ under a wide range of laws dealing with a wide range of disputes (family, industrial, human rights, discrimination, compensation etc.). The third is the influence of normative principles or values (often found in the statutory frameworks applying to so-called conciliation processes) upon the process itself and the outcomes arising from it.

ADRAC calls for submissions

ADRAC seeks comment, submissions, case studies, analyses of conciliation and even useful anecdotes or examples, that may assist is identifying and crystallising the essential characteristics of Conciliation. ADRAC invites visits to its website www.ADRAC.org.au, through which submissions and other material may be emailed.

Written by Jeremy Gormly.

 

 

Jeremy Gormly SC practices at the Sydney Bar, and has a long history of involvement as counsel assisting in numerous inquests and inquiries. Jeremy has also practiced as a mediator for over 20 years across a large number of dispute types, and is keenly involved in the advance of ADR. He is the current chair of ADRAC and the former chair of the National Alternative Dispute Resolution Advisory Council (NADRAC).