What is conciliation?
- Conciliation is free, flexible, and informal. It can lead to a fast resolution.
- Conciliation gives the person who made the complaint (the complainant) and the person, service provider or organisation being complained about (the respondent) a chance to talk about the complaint with the aim of resolving it.
- Conciliation can be tailored to suit the needs of the people on both sides of the complaint, for example, through a meeting at a conciliation conference either in person or by telephone, or by having the conciliator pass messages between them (either in writing, over the phone, by speaking to them in our rooms, or a combination of these).
- During conciliation, the conciliator does not decide who is right or wrong, or tell anyone what to do. Conciliation is similar to mediation, and not like a Tribunal or Court hearing.
What does the conciliator do?
- The conciliator decides who will take part in conciliation, and the best way for it to take place, after talking with both sides.
- The conciliator helps the complainant and respondent to talk respectfully with each other about the issues in the complaint, and does not support one person over the other. The conciliator will make sure the process is as fair as possible for everyone.
- The conciliator can provide information to assist the parties to reach a resolution. For example, in a discrimination complaint this could include information about the law, and how it applies to the complaint. In a complaint about service provision this could include information about any practice, or service standards that cover the situation.
- The conciliator will assist the complainant and respondent to explore ways of resolving the complaint, and also aid negotiation to increase the chance of getting an agreement.
- The conciliator can provide information about how other complaints have been resolved.
Who comes to conciliation?
- The complainant and the respondent are the main people involved in a conciliation process. Any representative of a company or organisation needs to be aware that conciliation is focused on resolution, and must have authority to make decisions to achieve this end.
- You can come to conciliation without a lawyer. If you do want to bring a lawyer or other advocate, you need to talk with the conciliator about this before the process starts.
- You are welcome to bring a support person with you to conciliation. If you require other support such as sign or spoken language support, the Commission will arrange this for you.
- Conciliation is confidential. This means that the Commission cannot give information about what happens at conciliation to the ACT Civil and Administrative Tribunal (ACAT) or a Court if any further legal action occurs. This enables both sides to have an open and frank discussion.
- The Commission expects both the complainant and respondent to keep all conciliation discussions (including negotiations) confidential. Agreeing to do this is a sign of good faith, and means that you will not use anything that is said or done during the conciliation process in related legal processes, or publicise it in any other way, if the complaint cannot be resolved.
- There is also a legal obligation on both parties to maintain the confidentiality of any conciliation as set out in section 99 of the Human Rights Commission Act 2005.
What happens at a conciliation conference?
- You will usually have some private time with the conciliator before the conference starts and also during the process. Usually the conciliator will not tell the other side what is said in these private meetings unless you agree. The conciliator can seek your permission to pass on something you have said to the other party, if the conciliator believes it is important.
- Generally, the complainant and the respondent will meet together with the conciliator where each person will have a chance to talk about the complaint and their views about it.
- After the parties have come together, the conciliator will help you to discuss how to resolve the complaint: either in the same room, or in separate rooms with the conciliator passing messages between you.
- You can request a break, or some private time to talk things over with the conciliator, your lawyer, advocate or support person at any time during the process.
Preparing for conciliation
- The Commission may have trouble rescheduling a conciliation once it is scheduled, so it is important that you try to stick to the allocated date and time.
- Make sure you tell the conciliator before the conference if there is any change in who will be coming with you.
- Make sure you are familiar with the details of the complaint and what might happen if the complaint cannot be resolved in conciliation.
- Think about what you want to say about the complaint. If conciliation is going to succeed, both sides need to be able to talk and share with each other. It is important that you are open to listening to the person on the other side, thinking about what they say, and treating everyone with respect.
- Keep in mind that although each side may have a different view about what happened and why, this does not mean that a resolution cannot be achieved. On many occasions complainants and respondents will agree that resolution is better than continuing with legal action or leaving the matter unresolved, even though they cannot agree on the details of the complaint.
- Be ready to say how you would like the complaint to be resolved, and be open to explaining why you think this is fair. Try to keep a few different options in mind and think about how you might be prepared to compromise so as to resolve the complaint.
- You may wish to seek advice from an advocate or lawyer. If you take this step you will need to pay for this yourself unless you can get free legal advice from a Community Legal Centre or industry group.
How are complaints resolved?
- You can find de-identified examples of how complaints are resolved in the Commission’s Annual reports
- The kinds of actions that are agreed upon to resolve a complaint depends on what the parties are open to, and what the complaint is about. Examples of actions which may lead to resolution are:
- An apology, statement of regret, or acknowledgement of distress;
- Improved communication pathways;
- An agreement to introduce changes to practices or policies;
- A commitment to train relevant staff;
- Re-instatement to a job, or an offer of employment;
- Re-instatement of a service, or change to how it is provided, or by whom;
- Financial compensation for monetary loss or injury to feelings, or in recognition of a service leading to a poor outcome.
- If you are seeking financial compensation to resolve the complaint, you should tell the conciliator before the conciliation conference.
What happens when a complaint is resolved?
- If an agreement can be reached by the complainant and respondent, the conciliator is required to write up a conciliation agreement, and helps the parties to negotiate mutually agreeable wording.
- The complainant and the respondent decide whether or not they would like a confidential agreement.
- Each side will be required to sign the agreement, and will be given a copy.
- For discrimination complaints, the Commission is required to register a conciliation agreement with the ACT Civil and Administrative Tribunal.
What happens if a complaint is not resolved?
- The conciliator may continue to assist the parties in their negotiations by telephone or email if it appears possible that a resolution may still be reached.
- If the conciliator decides that the complaint cannot be resolved, the Commission may seek more information before finalising its handling of a complaint.
- If a complaint cannot be resolved or the Commission thinks the complaint should not continue for some reason, the complaint will be closed as set out in the Human Rights Commission Act.
- When the Commission closes a discrimination complaint where conciliation has not led to agreement, the complainant gets 60 days to ask the Commission to refer the complaint to the ACAT, unless the complaint is withdrawn. The ACAT can decide whether unlawful discrimination has occurred, and if so what orders it should make.
Information for advocates and lawyers
- It is the conciliator’s role to decide how conciliation will be conducted in consultation with both the complainant and the respondent, including whether advocates or lawyers will attend and/or take part in a conciliation conference. The aim is to ensure that the conciliation process is as fair as possible for everyone.
- The Commission’s conciliation process is not the place for arguing about the law, determining whether a law was broken, deciding exactly what happened, or repeatedly questioning people about the events which led to the complaint. The conciliator cannot order any actions.
- The Commission expects that advocates and lawyers will work cooperatively with the conciliator, including being free to talk about the complaint and their client’s views before conciliation starts.
- Advocates and lawyers can help their clients prepare for conciliation by:
- giving advice about the law including speaking frankly about the strengths and weaknesses of their client’s case;
- providing information about what could happen if the complaint is not resolved at conciliation;
- helping their client weigh up the benefits and risks of taking legal (or other) action on the complaint if it is not resolved;
- supporting and encouraging their client to take an active role in the conciliation where appropriate;
- assisting the client to think about all of the different options for resolution;
- having their client rank how important each option is to them, and also carefully consider how they might compromise so as to reach a resolution of the complaint;
- deciding with their client what the conciliation agreement will look like, and what it will contain.
What if I have more questions?
If you need more information about conciliation, please contact the person who is handling your complaint at the Commission on 6205 2222.
The information in this Guide is not intended to take the place of legal advice.