Launch of Australian Dispute Resolution Advisory Council's Conciliation Report
I am delighted to be here this evening to launch the Australian Dispute Resolution Advisory Council’s Final Report on conciliation: Conciliation: Connecting the Dots.
This report makes an important contribution to our understanding conciliation and how it operates. It will be invaluable in further developing the professional identity of conciliation as a distinct area of alternative dispute resolution in Australia.
The Australian Dispute Resolution Advisory Council, and its predecessor, have had a long history of contributing to the development of alternative dispute resolution—or ADR— in Australia.
I would like to thank the Advisory Council for all of its hard work in preparing this report.
Alternative Dispute Resolution
Our justice system is strengthened through the use different types of alternative dispute resolution – including conciliation. ADR can be an effective mechanism for resolving disputes in a fair, fast, and affordable manner, without the need to go through costly legal proceedings in court.
While the use of ADR isn’t appropriate in all cases, it can empower parties to have a greater say and impact on the resolution of their disputes, without going through costly and time consuming court proceedings. When engaging in ADR, parties have an opportunity to better understand the views of the other party and can put forward options to seek to resolve the dispute in a less adversarial manner. ADR can also give disputing parties the opportunity to draw on the expertise of an independent third party to help them resolve their dispute.
Even when disputes can’t be resolved through an ADR processes, it is still beneficial to the parties, and to the court, for an attempt to have been made prior to the commencement of legal proceedings. It can clarify the issues in a dispute, or lead to them being narrowed or partially resolved.
All of these aspects lead to greater access to justice for disputing parties and, potentially, a more amicable resolution to the dispute.
Conciliation has a long history in Australia. It has been used to resolve industrial relations disputes since federation, and it’s even recognized in section 51 of the Constitution.
The Fair Work Act 2009 provides that the Fair Work Commission may resolve a dispute by conciliation – and it does.
In 2019-20, the Fair Work Commission conducted almost 13,000 conciliations and in 2020-21, 45 per cent of all applications lodged with the Fair Work Commission were resolved by conciliation. Interestingly, most of those matters were resolved over the telephone.
Having an emphasis on conciliation ensures that disputes are resolved by the Fair Work Commission in an informal, flexible and quick manner, ultimately reducing costs for parties.
This is particularly important in the workplace context, where employers need to focus on running their business and employees need certainty in their employment arrangements.
Conciliation has spread from industrial relations to many other areas of law, including family law, anti-discrimination law, and workers’ compensation law. It’s also used by various courts and tribunals – such as the Administrative Appeals Tribunal, which relies on conciliation as one means to resolve disputes.
The power to use conciliation has been enshrined in legislation. The Family Law Act 1975, the Australian Human Rights Commission Act 1986, the Work Health and Safety Act 2011, the National Disability Insurance Scheme Act 2013 all expressly refer to the use of conciliation as a way of resolving a dispute.
As the Final Report notes, conciliation is referenced in over 150 legislative instruments and is used by more than 100 statutory bodies or entities at the Commonwealth, State and Territory level.
The Final Report highlights the value of conciliation as a distinct form of dispute resolution. It also highlights that there is a persistent lack of clarity about the meaning of conciliation, which remains poorly understood. Even conciliators differ on the nature of their role.
This lack of clarity has led the Advisory Council to propose a new definition for conciliation.
Having a settled definition will improve understanding of conciliation, enable the development of best practice guidelines, inform policy development, and lead to better recognition of conciliators and the contribution they make. A clear definition will also allow facilitate the development of practitioner competencies and ethical expectations.
The Advisory Council’s definition acknowledges the utility of conciliation as a stand-alone alternative dispute resolution process. Through conciliation, disputing parties have access to conciliators’ skills and expertise to help them resolve their dispute.
Having access to this expertise in a relatively informal environment increases the chances of a dispute being resolved between the parties, without the need of more formal legal processes. This reduces demand on our courts and tribunals, improving access to justice for everyone.
Thanks to the work of Advisory Council, we have a greater understanding of conciliation as a dispute resolution process. The Final Report provides a foundation on which to further explore, understand, and clarify how conciliation is used. Underpinned by the direct contribution of conciliators and conciliation bodies, the report distinguishes conciliation from other alternative dispute resolution processes.
It does so whilst acknowledging that conciliators themselves differ on the particular elements of their work. This is reflected in the Advisory Council’s definition, which seeks to clarify what conciliation is while also allowing flexibility.
The Final Report is a welcome contribution to conciliation and the broader alternative dispute resolution community. It opens the door to further conversations about how conciliation can be better defined and recognised as a stand-alone method of dispute resolution, how the role of conciliators and the conciliation process is articulated to the public, and how this fosters greater confidence in the process and – potentially – better outcomes.
Thank you for your time today and I would encourage you all to look into this excellent report.