Mediation Is Not a Regulatory Tool, But Conciliation Can Be
- Shiv Martin
- Dec 18, 2025
- 5 min read
Why clear process definition matters for Ombudsman, tribunal, and regulatory dispute resolution in 2026
The Tension at the Heart of Modern Regulatory Practice
I’ve just wrapped up my final in-house Ombudsman workshop for 2026, and it’s prompted some reflection on the year that was. Across jurisdictions and sectors, the same questions keep resurfacing:
How do we achieve outcomes that are quick, fair, and genuinely constructive?
How do we meet regulatory objectives while offering informal, accessible dispute resolution pathways?
And the big one
How do we build trust in our role and process, uphold industry standards or statutory obligations and maintain our independence?
These questions sit at the heart of modern Ombudsman, tribunal, and regulatory practice. Every workshop I delivered this year reinforced a truth that is now impossible to ignore. We are constantly negotiating the tension between being a human service and a regulatory system/ public interest body at the same time. Many of the challenges that frustrate teams are not about conduct or capability, but about the lack of clarity in one foundational area: we are not defining our dispute resolution processes accurately.
Why Terminology Matters More Than We Admit: Mediation vs. Conciliation
Across the sector, I continue to see mediation listed as a regulatory tool, in policy documents, practice manuals, and sometimes even legislation. Organisations engage “mediators” to perform what is, in reality, statutory conciliation or regulatory conferencing.
Practitioners are then left uncertain:
When should I remain purely facilitative?
When am I required to evaluate, reality test, or align outcomes with legislation and scheme objectives?
This confusion is not a reflection of poor skill. It arises because the sector has not been consistent in naming and explaining the processes it uses. When language becomes imprecise, role clarity erodes and when teams are unclear, participants become unclear too.
Three Statements That Set a Clear Direction for 2026
To ground our shared understanding heading into 2026, I want to anchor three statements that matter deeply for regulatory practice:
Mediation is not a regulatory tool.
Conciliation is a regulatory tool.
Conciliation may sit within broad mediation definitions, but the distinction matters.
The implications of these statements are significant, and they directly affect quality, trust and compliance.
Why we keep getting the terminology wrong
Across Australia and New Zealand, too many facilitated conversations are called mediation when the process is something entirely different. Staff are asked to mediate matters that are, in reality, statutory conciliation, early resolution, regulatory conferencing or legislatively bounded negotiations.
Part of the confusion comes from the familiarity of the word mediation. It appears casually in legislation without definition. It feels approachable. But familiarity cannot replace accuracy. As the regulatory sector matures, precision in naming becomes essential.
Conciliation, similarly, is referenced in the Australian Constitution and appears throughout state, territory and Commonwealth legislation with a uniform meaning. Constitutional language signifies real expectations about role, powers and outcomes.
Getting the name right is not semantics. It is a matter of legal and procedural integrity.
Understanding the Regulatory Toolkit
To understand why mediation does not belong within a regulatory framework, we need to understand the broader system regulators operate within. Regulatory tools are the mechanisms, processes and powers used to influence behaviour, support compliance and protect the public interest. They range from the least intrusive to the most interventionist, and each tool serves a specific purpose.
1. Education and guidance
These 'soft' tools encourage voluntary compliance. Examples include fact sheets, helplines, guidelines, advisory notes, outreach and industry training. They aim to reduce confusion and prevent disputes before they escalate.
2. Early resolution and informal problem solving
These tools address issues quickly and directly. They include early engagement, triage, informal conversations and supportive issue clarification. They are ideal when the matter can be resolved without formal intervention.
3. Conciliation and regulatory conferencing
These processes involve facilitated negotiation within the legislative boundaries of the scheme. Conciliators provide evaluative communication, reality testing, clarification of rights and obligations and ensure outcomes remain consistent with public interest. This is the point on the regulatory spectrum where conciliation sits. It is a genuine regulatory tool but it is not a purely facilitative process where the officer (employed by the regulatory agency) takes a neutral stance.
4. Investigation and compliance activities
When early resolution is not possible or when risk is significant, regulators shift to higher level tools, including formal investigations, audits, notices, show cause processes and warnings. These tools assess conduct and determine further action.
5. Enforcement and sanctions
The highest level tools involve enforceable undertakings, infringement notices, licence conditions, licence suspension and cancellation, civil penalties and prosecution. These tools are used when serious harm or persistent non compliance is present.
Understanding this landscape makes one thing clear. Mediation does not fit as a regulatory tool. Mediation is a confidential, party directed process that is not intended to purely service a regulatory purpose. Conciliation, meanwhile, sits naturally within the early resolution space of the regulatory toolkit.
Mediation is not a regulatory tool
Mediation belongs entirely to the parties. It is built on a philosophy of autonomy, self determination and voluntary participation. The ethic of mediation is that people are the experts in their own lives and disputes, and therefore the outcome must emerge from their own choices, not from the influence of a system or the authority of a decision maker. The mediator’s role is facilitative, not directive. They hold the process, not the outcome.
A mediator is often described as a mirror. They reflect back what they see and hear so the parties can gain clarity, insight and perspective. They assist parties to communicate with each other, explore interests, generate options and consider possibilities, but they do not evaluate, assess rights, or steer the parties toward any particular solution. They do not carry a public interest mandate. They do not uphold scheme objectives or enforce compliance. They serve only the parties and derive their authority solely from party consent.
Why does mislabelling matter?
Because it creates false expectations. Participants expect neutrality from mediation. Regulators cannot provide that neutrality.
Why do organisations default to mediation language? Because it is familiar. But familiarity is not accuracy.
What should organisations do instead? Use the correct terminology. Mediation if the practitioner serves only the parties. Conciliation if the practitioner must consider legislation, policy and public interest.
Why this matters for your team in 2026
If you work in or lead a dispute resolution function, the model you use determines everything. It shapes the skills you build, the expectations your stakeholders form and the outcomes you measure. No team can excel in a process it cannot name. Clarity is the foundation of capability, fairness and public trust.
A resource for your team
If your team is grappling with these questions, my Conciliation Essentials Guide offers a simple and practical way to build clarity.
Looking ahead to 2026
As you review your frameworks for next year, prioritise clarity in naming, role boundaries and capability building. When organisations use the correct process and name it accurately, everything improves: trust, consistency, efficiency and outcomes.
You can also continue learning with me through my free monthly workshop series on conflict resolution and early engagement for regulatory teams. Register for free here.
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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📧 Email: contact@shivmartin.com 📞 Phone: 0433 904 303
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