Conciliation History PDF

### History of conciliation The word is used in the Constitution at (s 51) for prevention and settlement of industrial disputes Started in the workplace dispute context and is now practiced across a range of dispute resolution frameworks Conciliation began in the FWC and is not practices by over...

### History of conciliation The word is used in the Constitution at (s 51) for prevention and settlement of industrial disputes Started in the workplace dispute context and is now practiced across a range of dispute resolution frameworks Conciliation began in the FWC and is not practices by over 80 organisations and is mentioned in over 100 pieces of legislation. The RTA also uses conciliation There is no precise definition of what it is, people are often confused about it and it follows a model which is unfamiliar to many legally trained people Tax disputes are another forum in which disputes can be resolved ### ADR Advisory Council, November 2021 (READ IN PREP FOR EXAM) Gave a consistent definition of conciliation Recommendations around training, professional development and standards Observations on current practice in a range of different... ### Conflict resolution theory Where does conciliation fit in from a theoretical perspective, how it fits in with mediation and what mindsets you need to be able to define a process as a conciliation We are familiar with the determinative hat that judges wear. Aside from this, there are 3 other hats you can wear (as below) Independent 3^rd^ party intervention modes in conflict: facilitative (mediators do this, they assist with commination, don't suggest or impose solutions, they are just there to improve the way that communication flows), informative (ombudsman do this, they outline to people what to look for in determining issues, seeks to educate so that individuals can decide what to do), evaluative (where conciliators sit the most) and determinative Evaluative mode: will listen to the information presented, will give information back to parties, discuss with both parties, then bring parties together for the conference. The conciliator will give information to the parties about their rights prior to. In the conference, they might give information to both parties and about options to resolve. They may also take parties to the side and in these private discussions might bring up the legal consequences if the matter were to proceed to a hearing. Leave it to the parties to decide and informs on the prospects of the case, pushes towards settlement but is ultimately open ended Conciliation leaves space for the opportunity to meet the needs of parties in a way that outdated and slowly evolving legislation could never Determinative: if a matter in the FWC is not resolved in a conciliation it moves to a hearing and a 3^rd^ party makes a decision on what happens next These organisations are often set up for low costs and some will have conciliations where there is no legal representation present. Whether or not there is legal representation often depends on the cost of the dispute Some forums require parties to seek leave to be represented The final outcome might be heavily influenced by the conciliator's own views and expertise but is ultimately something agreed to by both parties. It can happen asychronistically ### The features of each extreme Facilitative (Mediation) - Options and Outcomes decided by the parties - Third party facilitates the discussion but does not provide advice - Allows rebuilding of trust and respect. - Not suitable where there are power imbalances, lack of trust, misunderstanding of legal obligations. - May lead to inconsistent outcomes. Depends on what parties are willing to agree to and this can cause challenges to certain communities and industries. - If you have a 3^rd^ party mediator who does not give information about legal rights and then you might have outcomes which are subject to review later on - Lack of transparency Determinative/Investigative - Third party assesses submissions and evidence Procedurally onerous - Resource intensive for all parties - Adversarial - Outcomes based on a set of rules, policies and procedures. - Does not build trust or a future cooperative relationship between parties. - Might not address all the needs of a party - It is consistent and transparent, a 3^rd^ party with a high level of expertise, generally has a public interest test involved Conciliation is in the middle, it takes the benefits of both and resolves conflicts where there is opportunity to resolve trust and ensures that outcomes meet regulatory and community expectations. It provides a solution to the drawbacks of either end of this spectrum ### Ways of resolving conflict Facilitative DR (Mediation) is interest based. Where you ask people why and what their underlying interests are. Come up with solutions based on what is important to a person Conciliation is rights based. A discussion which runs on what the options are but can also be more adjudicative and depends on what each party has a right to. Conciliators can decided whether to focus on interests or rights and how to balance this with the expectations of either party Adjudication/Determination is power based. You select precedent and decide what parties are entitled to based on that ### \"The Crossroads of Conflict: A Journey Into the Heart of Dispute Resolution\" (2006) Kenneth Cloke Interest-Based Conflict Resolution: - focuses on the parties\' interests and seeks to identify common ground and shared interests. - parties involved in the conflict work together to find a solution that meets everyone\'s needs and interests. Rights-Based Conflict Resolution: - focuses on the legal rights of the parties involved in the conflict and upholding the law and ensuring that each party\'s legal rights are respected. - Also consider public interest and open justice (leading to consistency, community expectation management) The first step for lawyers is to understand there is 2 ways to go about conflict. The other thing is if someone is paid to be in a conflict, they are coming at the dispute from a rights perspective, but their interest is to keep their employment with the company/firm ### Case studies [Interest Based] Context:\ A local council tribunal is mediating a dispute between a community gardening group and a business owner regarding the use of a shared public space. The gardening group uses part of the space for planting, while the business owner wants to expand their outdoor seating area. Resolution Approach:\ The tribunal facilitator adopts an interest-based approach by bringing both parties together to explore their underlying interests. Key Interests: - Gardening group: Maintaining green space for the community and supporting local food initiatives. - Business owner: Increasing foot traffic and providing a pleasant outdoor seating area for customers. Outcome:\ Through facilitated discussions, both parties agree to redesign the shared space to accommodate seating along the perimeter while preserving a central area for community gardening. The business owner agrees to sponsor the garden's upkeep in exchange for small signage crediting their support. Result:\ Both parties\' core interests are met, fostering collaboration and strengthening community ties. [Rights Based Conflict Resolution] A tribunal is tasked with resolving a dispute between an employee and their employer over alleged unfair dismissal. The employee claims the dismissal violated their contractual rights and workplace fairness policies. The employer argues the dismissal was due to performance issues. Resolution Approach:\ The tribunal focuses on rights-based conflict resolution by assessing the legal frameworks governing employment rights and contractual obligations. Key Considerations: Examination of the employee's contract, performance records, and the employer's adherence to disciplinary procedures. Review of relevant employment legislation and case law to ensure procedural fairness and adherence to public interest principles. Outcome:\ The tribunal determines that the dismissal process was flawed as the employer failed to follow mandatory procedural steps. The employee is awarded compensation for wrongful dismissal, and the employer is directed to update internal procedures to align with legal requirements. Result:\ The tribunal upholds legal rights, reinforces fair employment practices, and promotes consistency and transparency in workplace dispute resolution. ### Forums which use conciliation A diagram of a legal system Description automatically generated with medium confidence ### Key variables in conciliation between organisations  Some organisations have compulsory conciliation which is required prior to proceeding to the next stage, for others it is opt in Not all conciliation processes are entirely confidential ### Overall stages of conciliation A blue and white list of information Description automatically generated with medium confidence Conciliators have the power to step in when they believe the agreement reach is outside the regulatory framework ### A simple definition of conciliation A hybrid dispute resolution process, that focuses on the interests and rights of the parties, to arrive at a consensual outcome that accords with the goals of an overarching system. System objectives: compliance, regulation, safeguarding, public interest, efficient resource management ### Issues with conciliation Process is highly dependent on the skill, preparedness, and bias of the conciliator Process is very brief Privacy of the process means there might be less accountability