A barrister once said to me “There aren’t as many trials as there used to be” and he was right. The cost, delay and uncertainty of outcome generally make “going to court” undesirable. Together with the increasing load on an under resourced court/tribunal system, this has led to the rise and rise of early mediation. Mediation is a formal process involving a neutral third party with the objective of achieving a binding agreement settling all matters in dispute.
In employment and discrimination law claims, a “conciliation conference” is generally one of the first steps to take place whether the claim is of unfair dismissal, breach of general protection rights, discrimination, unpaid entitlements or an award/enterprise agreement based dispute. Conciliation is generally less formal and less structured than mediation. Like mediation, a neutral person seeks to facilitate an agreement between the parties to a conflict. Ideally, the conciliator does this by helping the parties to clarify issues, understand the strengths and weaknesses of their positions and by serving as an intermediary for negotiations. Normally these types of discussions are conducted by an external independent person without any vested interest.
It is possible to undertake mediation/conciliation by agreement outside of the court system with a private mediator paid for by the parties. However, the courts and tribunals increasingly have employed staff conciliators to conduct court ordered conciliations. Usually these take place after an application and response have been filed by the parties but before all statements of evidence/submissions have been lodged. However, conciliation is not a hearing substitute and the pros and cons need to be kept in mind:
Conciliation Advantages
1. An early opportunity to resolve claims and achieve certainty without an ongoing investment of time, money and emotion;
2. An opportunity to express feelings and seek remedies outside the strict confines of the legal grounds of the claim;
3. The conciliator is an independent expert who can reality test the claim/defence and expectations and raise alternative solutions;
4. The process is private and settlement agreements are generally confidential – this may also be a con sometimes;
5. The parties reserve the right to go to court if they are not happy with the outcome;
6. The process is relatively informal so parties should not feel too far out of their comfort zone.
Conciliation disadvantages
1. Conciliation is about getting an outcome rather than “justice” which means compromise by both sides is necessary for settlement;
2. Conciliators don’t carry the same authority as judges/commissioners;
3. There is no independent determination of a claim in a conciliation/mediation;
4. Many conciliations are conducted by phone. It is often easier to say “no” when you are not looking the other side in the face;
5. Both sides often have strong feelings and are not prepared to concede their positions at an early stage – sometimes the pain and expense of litigation needs to be felt before the realities of litigation set in;
6. Time is relatively short, generally an hour or 2 (or 3 at most) and there is not the time for detailed statements of facts or lengthy consideration of issues;
7. There is often pressure to make, accept or reject offers during the conciliation. “Settlers remorse” is not uncommon;
8. Some conciliators are more interventionist or more willing to express a view and get involved in the process than others;
9. If either side breaches a settlement agreement, separate legal enforcement action is usually necessary.
It is wise to prepare properly and obtain legal advice before a conciliation takes place. Please contact us if you would like any further information or help.