Guide to Conciliation
What happens if HRC decides to attempt conciliation?
The Commission’s decision means that while the complaint has not been proven, the Commission is satisfied that the complaint is appropriate for conciliation and is likely to be successfully conciliated.
The Commission may continue to consider a complaint that has been referred for conciliation; however, the conciliation process is separate from and independent of any further consideration of the complaint. Any information discussed in the conciliation process may not be used for the consideration of the complaint unless both parties explicitly agree to this.
Conciliation is an opportunity for the people involved in a complaint to sit down and talk about the issues and to resolve the complaint privately and by agreement.
A conciliation conference is a meeting between the two parties (the complainant and respondent) to attempt to resolve the complaint. A Conciliator from the Human Rights Commission conducts the conference. The complainant (the person who made the complaint) and the respondent (the person, business or agency against whom the complaint was made) usually meet “face to face”, though not always. Sometimes the complainant and the respondent will bring along a support person or advocate, if the Commission agrees. Often, this will be the first time that the parties have met to discuss the complaint, though the Commission may have collected a lot of information about the complaint during the consideration process.
The aim of the conciliation conference is to allow both parties to discuss the alleged complaint and the issues around it, and to attempt to find a mutually acceptable way of resolving the complaint. Sometimes conciliation conferences reveal further information previously unknown or unclear. The conference provides a chance for better understanding between the parties even though they may not agree about what exactly happened. It is also an opportunity for the Commission to provide information about the law and what it means.
There is a suggested programme for the conciliation conference at page 12. The Conciliator will meet with each party privately before the conference to make sure that they are clear about the aim of conciliation and the way the conference will proceed. Once the complainant and respondent are brought together, the Conciliator chairing the conference gives a brief introduction outlining her/his role and the way the conference will be run. The complainant should come to the conference with some ideas about what will resolve their complaint. In most cases this proposal is only discussed after the allegations and the response to those allegations have been discussed. Frequently, other suggestions for resolving the complaint can be made during the conference and each party should consider these alternatives.
The Conciliator may call a break after the proposal and other suggestions are presented to give the parties an opportunity to think privately about what may settle the complaint. Either party has the right to call for a break in the conference at any time to help gather their thoughts and consider their options. Sometimes one conference will not resolve the complaint. It may be necessary for the parties to go away from the conference to consider options, collect information, or to think about the proposed written agreement (see page 10). The Conciliator cannot tell either party what to agree on, although we may show you outcomes from other discrimination cases that might help the parties work out what is fair. When this sort of information is given, it will be given to both parties.
What do we need to know about the Conciliation Process?
There are three main elements in a conciliation process:
Being impartial is essential to the work of the Human Rights Commission. It means the Conciliator will be even-handed, objective and fair. In other words the Conciliator will not take sides. For example, if a Conciliator knows either the complainant or the respondent personally or has some other interest in the complaint, then it may be better that another Conciliator chairs the conference. Allegations that the Conciliator is biased are very rare. If you do have such a concern then you should raise it with the Commission. If a solution cannot be found to resolve your concern, then the Commission may decide, on the basis of your concerns, that the matter is not conciliable (see below) and the conciliation conference may not proceed or continue.
The Human Rights Commission Act 2005 (section 99) requires that all staff of the Human Rights Commission protect the confidentiality of complaints, unless we have your consent to do otherwise. This means that:
- it is our practice not to reveal if we have received a particular complaint to anyone who may enquire, for example, the media.
- we handle matters discreetly and do not leave telephone messages that would indicate that there is a complaint with us.
- we mark all of our correspondence “private and confidential”.
- we ask that both complainants and respondents keep the complaint confidential as well.
- if the complaint is not settled through conciliation and the complainant asks for the complaint to be referred to the ACT Civil and Administrative Tribunal (ACAT), no information about the conciliation process will be made known to the Tribunal. Only the key documents collected during the Commission’s consideration process will be sent to the Tribunal.
Section 99 also requires any person present at a conciliation conference to keep matters confidential. It is an offence under the Act not to keep matters discussed confidential.
The Human Rights Commission’s usual conciliation process can be changed to suit both parties and we will listen to any reasonable suggestion you have to make things easier. This can include working out who should be at the conference or when it should be held.
Do we have to participate?
The conciliation process requires the parties’ willing and informed agreement to take part. The Commission can instruct people that they must attend a compulsory conference (section 59 of the Human Rights Commission Act 2005), but may not require the party to take part. If complainants or respondents refuse to attend, the person who refuses to attend may be guilty of an offence [maximum penalty: 50 penalty units]. Also it is in the interest of all parties to attend the conciliation conference in order to sort out the matter as quickly and cheaply as possible and instead of, in the case of a discrimination complaint, going to the Tribunal.
Who should come to a conciliation conference?
Complainants should attend the conference themselves. If the respondent is a large organisation, they should try to send someone who has:
- excellent communication, empathy, listening and ‘people skills’
- excellent negotiation skills
- creative ideas for resolving the complaint
- the authority to negotiate on behalf of the organisation
- not already had unpleasant contact with the complainant, and
- who is not personally named in the allegations.
In some instances the complainant may wish a particular person identified in their complaint to be present. Who will be present during the conciliation conference will be discussed with you before the conciliation conference is held. The Commission may allow other people to attend the conciliation if it considers that their attendance will help the conciliation. However, neither party may be represented by anyone else in the conciliation unless the Commission is satisfied that this representation is likely to help the conciliation substantially (section 57 (3) of the Human Rights Commission Act 2005). If the complaint is against a small organisation and the person named as, for example, doing the discrimination or harassment is also the manager or the owner of the organisation, then that person would have to attend the conference.
What are the rules at a conciliation conference?
The rules are really simple rules of courtesy:
- one person speaks at a time – don’t interrupt each other
- both sides agree to keep the discussions confidential
- no personal attacks
- discussion should focus on the issues in question – not unrelated matters
- no cross-examination
- no abusive behaviour.
Strategies for participating in a conciliation conference Be prepared – before you come to the conference:
- Discuss all the issues, as you see them, with the Conciliator before the conference.
- Ask questions if you have them.
- Get any legal, financial or other advice you may need (remember this is a suggestion not a requirement).
- If you’re a respondent, get all relevant information about the complaint from inside your organisation.
- Consider all of the information and issues and think about it from the other party’s perspective as well (what will be their concerns, issues, etc).
- Have some options for how you think the complaint may be resolved.
- If you’re the respondent organisation, be prepared to send someone who has the authority to negotiate and make a settlement, if appropriate, on the day of the conference.
Remain calm – try not to take any allegations personally or lose perspective – this can make negotiations more difficult. Remember that the Conciliator is impartial and will not take sides.
Be open – discussions in a conciliation conference are confidential and they cannot be used by either party at the ACT Civil and Administrative Tribunal. If you have information that the other party should be aware of and which was not shared during the consideration of the complaint, you can tell them or show them a document that they can read in the conference and return to you. For example, respondents may tell the complainant what changes their organisation may have made in order to deal with the problems that have been raised by the complaint.
Listen and don’t interrupt. If someone makes points, or says some things that you agree with, you can let them know. Respondents, even if they disagree, can show complainants that they have listened to them, by mentioning things they have said. In general, complainants need to feel they have been heard before they are ready to resolve the complaint.
Turn your mobile phone off so that it doesn’t cause a distraction during the conference.
Park your car somewhere where you won’t have to feed the meter or worry about parking fines.
Allow at least four hours for the conciliation conference. Arrange for someone to support you – a support person can help you in thinking through what the other party has said and might be able to help you think of ways to resolve the complaint. You can talk to the Conciliator about having a support person attend the Conference with you. You could also arrange for someone to meet with you after the Conference.
What is the support person’s role at the conciliation conference?
Sometimes, complainants and respondents will bring an advocate or support person to conciliation. Support people play an important role in helping the complainant or respondent to participate in the conference as positively as possible. A support person attends the conference to:
- Be a strong, positive supporter of the complainant or respondent while being open to the issues and suggestions that the other people might talk about;
- Be focussed on the person they are supporting by leaving their own personal issues out of the meeting;
- Talk for the person they are supporting, but only when that person cannot talk for themselves or appears stuck;
- Represent the other person’s views in such a way as to build understanding;
- Be a sounding board during breaks in conciliation so that the person can ask questions like “What do you think Jo meant when he said …?” or “If you were in my shoes would you accept…?”
- Be positive and realistic about the conciliation process and what it might achieve;
- Encourage the person to talk about the issues of importance to them;
- Demonstrate respect for the people they are supporting, their issues and ideas for resolving the complaint; and
- Help the person to test out a potential agreement in comparison to going to a Tribunal hearing.
Can we take a lawyer to the conciliation conference?
Section 57 (3) of the Human Rights Commission Act 2005 prohibits parties from being represented by anyone else in the conciliation unless the Commission is satisfied that the representation is likely to help the conciliation substantially. The Human Rights Commission’s conciliation process is intended to be a form of alternative low-cost dispute resolution where lawyers are not required and people do not have to go to court to decide who is right or wrong. It is an opportunity for people to speak for themselves and to find their own ways of resolving the complaint.
The Commission has the power to conduct conciliation in a way that it thinks will help the parties find a mutually acceptable way to resolve the complaint (section 60 of the Human Rights Commission Act 2005). It is the Commission’s view that most complaints can be resolved without lawyers being present. Occasionally complainants use lawyers to write their initial complaint to the Human Rights Commission, and some respondents use them to write their reply to the allegations in the complaint. Both parties may use other advocates as well, such as a union or employers’ organisation. You may negotiate through your lawyer outside of the conference itself. Generally we discourage the use of lawyers at a conciliation conference unless both sides are represented and the Commission considers it is likely to help the conciliation process substantially. The point of a conciliation conference is to allow the parties to discuss the complaint openly to help find a practical and fair way to resolve it. The conference is about finding a way to lay the complaint to rest or alternatively, change the nature of the parties’ future relationship, if there is to be one. The conciliation conference is not about arguing what the law means, or how the complaint fits into the law, or what the Tribunal might say about the complaint, or how strong a case the lawyer thinks their client has and whether they would win at a Tribunal.
These are things for the Tribunal (see below) and these sorts of legal arguments can often hinder the conference. What should we do if we’re not permitted to take a lawyer to the conference? There are ways to get around the problem of not being allowed to have a lawyer with you at the conference. For example, you may be able to have the lawyer on the premises, in another room for you to consult as needed, or you may find it better to arrange for your lawyer to be available for telephone contact with you during the conciliation conference on an as-needed basis. A better alternative for the parties is to get advice they need about resolving the complaint before they attend the conciliation conference so that they are prepared to negotiate on the day of the conference. For example, respondents should discuss with their lawyer if they should settle, if so, on what terms and what would be a reasonable range of compensation if any.
What is the Conciliator’s role at the conciliation conference?
The conciliator must remain impartial at all times. They ensure that the conciliation conference is run fairly and that each party can put their point of view without being interrupted. They make sure that the conference deals with the main issues and not irrelevant matters. They may meet separately with either party at any time during the conference. (Either party can ask for a break to speak to the Conciliator alone at any time.) The Conciliator runs the conciliation conference in as non-adversarial a way as possible. The Conciliator does not push a recommended way of settling the complaint, but may suggest ideas to the parties to consider. The Conciliator does not make a decision about who is right or wrong or what should be done about it. The Conciliator will ask the parties if any proposed resolution will ensure that the alleged discrimination stops and that the agreement itself will not impose any further discrimination.
What sorts of things resolve complaints?
The following list is not exhaustive and there can be many other ways of resolving a complaint:
- a written or verbal apology
- introduction of policies and guidelines to show that discrimination is against the law and will not be tolerated.
- for individuals to undergo training to learn about what is and isn’t appropriate behaviour
- provide access to training or chances for promotion
- provide a service that was previously denied or given in a way that was inappropriate
- financial compensation for lost income or for hurt and humiliation
- other gestures to show the respondent’s good will towards the complainant
What if we work out what will resolve the complaint?
The Conciliator must assist the parties to record their agreement in writing. This is required by section 62 of the Human Rights Commission Act 2005. On page 10 you will find a “skeleton agreement”. If an Agreement is reached, each party must sign the Agreement and the Commission must:
- give each party a copy of the Agreement; and
- if the complaint is a discrimination complaint, give the agreement to the ACT Civil and Administrative Tribunal (ACAT). This Agreement is enforceable as if it was an order of the ACAT.
Otherwise, what appears in the written agreement is negotiated between the parties. There are some questions that you should think about:
- whether the agreement is to be confidential or are there certain situations where the agreement can be revealed publicly?
- does it cover whether there is an admission of wrongdoing by the respondent? (It is NOT necessary for any party to admit to wrongdoing for an agreement to be reached. Most agreements include the phrase “Without any admissions of liability, the respondent agrees to …)
- is it clear what will be done to settle the complaint? Who will do what? When it will be done? It is important that both parties believe that they can deliver what they have agreed upon and they will know if the agreement has been carried out or not.
What happens if an agreement cannot be reached?
If an agreement cannot be reached, the Commission will write to the complainant and the respondent and tell them that the complaint is not conciliable. If an agreement has not been reached and the Commission has completed its consideration of the complaint, the complaint may be closed. If a discrimination complaint is closed the Commission, will also ask the complainant if they want their complaint referred to the ACT Civil and Administrative Tribunal. The complainant has 60 days from the date of the Commission’s letter to let the Commission know if the complaint should be sent to the Tribunal.
The Commission will let the respondent know if the complainant does, or does not, want their complaint referred to the Tribunal. If the complainant does not let the Commission know, within the sixty days, whether to refer the complaint to the Tribunal, then the complainant may apply to the Tribunal under the section 78 of the Discrimination Act 1991, for the complaint to be heard if exceptional circumstances prevented the complainant from making the request to the Commission within the sixty days.
What if the agreement is breached?
If the complaint is a discrimination complaint, either the complainant or the respondent can ask the Tribunal to enforce the agreement if they believe that the other party has not kept the agreement. For further information, you can contact the ACAT