# Table of Contents
1. Introduction to Conciliation
- Definition and Overview
- Importance of Conciliation in Australia
2. Understanding the Conciliation Process
- Key Stages of Conciliation
- Preparation and Opening Statement
- Parties’ Statements
- Joint Exploratory Session
- Private Meetings
- Concluding Joint Session
3. Role of the Conciliator
- Skills and Qualifications Required
- Differences Between Conciliators and Mediators
4. Conciliation vs. Mediation
- Key Differences and Similarities
- Comparative Analysis
5. Organizational Practices of Conciliation
- Statutory Bodies Utilizing Conciliation
- Case Study: Fair Work Commission
6. Conclusion
- Summary of Benefits and Effectiveness of Conciliation
7. Frequently Asked Questions
- Common Queries About Conciliation
8. References and Further Reading
- Resources for Learning More about Conciliation
Conciliation is a dispute resolution process used by many Tribunals and Commissions such as the Fair Work Commission and Human Rights Commission. Here's is an article answering some of the frequently asked questions about Conciliation:
What is Conciliation?
Conciliation is a facilitative Dispute Resolution (‘DR’) process where an impartial
interventor (the conciliator) brings disputing parties together to discuss key issues and
explore settlement options, without the conciliator making binding decisions. 1 The process
operates under legislative or binding rules, requiring compliance with norms and standards
specific to the context. 2
The roles of conciliators vary depending on the context, such as relevant legislation,
contracts, and industry standards. 3 However, the process generally involves a conciliator
utilising their specialist knowledge and experience to evaluate positions, offer advice, and
clarify issues to help parties resolve the dispute. 4 Additionally, conciliation entities may have
responsibilities beyond conciliation, such as facilitation, advisory or enforcement functions. 5
Why is Conciliation important?
Conciliation is widely used in both statutory entities and the private sector across Australia,
with over 23,000 conciliations annually, the majority resulting in settlements. 6 It is applied in
various contexts such as Indigenous land rights, human rights, and employment. 7 Despite
early statutory recognition of conciliation in the Australian Constitution and the Conciliation
and Arbitration Act 1904, conciliation was left undefined. 8 From the 1980s onwards,
conciliation gained recognition as an effective complaint handling process, becoming
mandated in legislative and statutory programs where unresolved disputes often proceed to
adjudication. 9 Scholars have highlighted the ambiguous nature of conciliation which
prompting ADRAC to publish “Conciliation: Connecting the Dots” in 2021 to clarify its
process. 10 ADRAC noted that conciliators handle an average of 252 conferences annually,
supported by other 100 laws. 11 Conciliation is governed by 20 Commonwealth statutes and 12
statutory bodies, alongside 96 state and territory statutes. 12
How does Conciliation compare to Mediation?
Despite conciliation and mediation often being considered similar, most conciliators view
their roles as distinct. 13 The ADRAC definition of conciliation closely resembles the NMAS
definition of mediation, indicating significant similarities and overlaps between the two
processes. 14 A comparison can be found below. 15
What are the key stages in the Conciliation process?
The conciliation process varies across organisations but generally includes the following
stages:
1. Preparation and Opening Statement: The conciliator explains their role, the parties’ roles, the process, and ground rules. 16
2. Parties’ Statements: Each party presents their view of the dispute, noting interests, needs, and resolution options. 17
3. Joint Exploratory Session: The conciliator recapitulates views, options, and strengths/weaknesses, encouraging direct communication and identifying interests to facilitate problem-solving. 18
4. Private Meetings: The conciliator meets privately with each party to reality-test alternatives. 19
5. Concluding Joint Session: The conciliator helps narrow issues, facilitates final negotiations, and finalises agreements or adjourns/terminates the session. 20
What skills does a conciliator need?
Conciliators must have training or qualifications in mediation (NMAS mediation
accreditation), conciliation, or other DR forms. 21 Conciliation training includes “specialist
knowledge, specialist skills, and entities provision of internal professional support”. 22 Many
entities offer in-house initial training and handbooks that guide process issues specific to their
organisation. 23
The conciliator plays a proactive role in the process, which includes conducting the process,
controlling the information received by parties, and engaging in reality testing. 24 For instance,
they assess the strengths and weaknesses of positions, identify the potential implications if no
settlement is reached, and explain how the court may perceive the matter. 25
What are some organizations that use Conciliation and how is it practiced?
Numerous statutory bodies conduct conciliation. At the Commonwealth level, these include
the Administrative Appeals Tribunal, the Australian Human Rights Commission, and the Fair
Work Commission. 26 In Queensland, entities such as the Anti-Discrimination Commission,
the Office of the Health Ombudsman, and the Land Access Ombudsman also utilise
conciliation. 27
The Fair Work Commission helps resolve unfair dismissal disputes through conciliation,
conducted by trained staff experienced in conciliation, workplace relations, and unfair
dismissal law. 28 Typically held over the phone, parties negotiate informally without obligation
to settle. 29 Representation by lawyers or agents is not required, but if used, permission must
be sought if the conciliator is a Commission member. 30 Agreements reached are documented,
with a 3-day cooling-off period for unrepresented parties. 31 If no settlement is reached, the
dispute proceeds to a formal hearing unless the employee withdraws their application. 32
References
1 Laurence Boulle, ‘Conciliation and Mediation in Australia’ (2022) 32(1) Australasian Dispute Resolution
Journal 23, 31.
2 Ibid.
3 Ibid.
4 Ibid.
5 Ibid 29.
6 Ibid.
7 Ibid.
8 Constitution, s 51(xxxv); Conciliation and Arbitration Act 1904 (Cth); ADRAC, ‘Conciliation: Connecting the
dots’ (Final Conciliation Report, November 2021) 21 [2.1]-[2.3].
9 ADRAC (n 7) 22 [2.8].
10 ADRAC (n 7).
11 Boulle (n 1) 29.
12 Ibid.
13 Boulle (n 1).
14 Ibid.
15 Ibid.
16 Administrative Appeals Tribunal (‘AAT’), ‘Conciliation Process Model’, Conciliation (Web Page) 1 <
17 Ibid.
18 AAT (n 15) 2.
19 Ibid.
20 Ibid.
21 ADRAC (n 7) 28 [4.92].
22 Ibid 23 [4.56].
23 Ibid 34 [4.150].
24 Ibid 22 [4.42].
25 Ibid.
26 Ibid 41.
27 Ibid 42.
28 Fair Work Commission, Unfair Dismissals Workbook: Conciliation (Web Page) <
29 Ibid.
30 Ibid.
31 Ibid.
32 Ibid.
ABOUT THE AUTHOR
Shiv Martin is a nationally accredited mediator, practicing solicitor, conciliator, decision-maker, and certified vocational trainer. With extensive experience in complex dispute resolution, stakeholder engagement, and team building across business, community, and governmental sectors, Shiv brings over a decade of unique and diverse expertise in Law, Management, Vocational Education, and Mediation.
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