Information Sheet
Information for advocates and lawyers assisting parties in a conciliation process
HREOC provides a free service to handle complaints of
discrimination, harassment and unfair
treatment.
Under the federal laws that HREOC is
responsible for administering, the President is required to attempt to resolve
complaints by conciliation.
Advocates and
lawyers may be invited to assist a complainant or respondent in a conciliation
conference organised by HREOC.
Some advocates
and lawyers may have extensive experience in assisting parties in a mediation
process. Others, however, may find it a new experience. The following
information is for advocates and lawyers who are relatively new to the process.
The conciliation process
Conciliation is a process which allows
complainants and respondents to state their point of view, listen to each other,
discuss the issues in dispute and explore ways to resolve the complaint in a
way.is acceptable to both parties.
Conciliation differs from a court hearing in a
number of important ways. It is not a forum for determining facts,
cross-examining parties, deciding legal issues, judging whether or not a breach
of the law has occurred or making orders about what action should be taken.
Conciliation is also considered to be a
confidential process. Discussions relating to resolution of the complaint cannot
be used in any subsequent legal proceedings.
The conciliator is a neutral party and does
not advocate for either party and does not force parties to resolve the
complaint. The conciliator can, however, help parties to explore options to
resolve the complaint and provide information about possible terms of
settlement, based on other conciliated complaints and general legal precedent.
It is up to the conciliator to decide if
advocates and lawyers are invited to attend a conciliation conference. In making
decisions about who attends and participates in a conciliation conference, the
conciliator aims to ensure a fair and equitable process for both parties and to
maximise the opportunities for resolving the complaint.
If advocates or lawyers do participate in a
conciliation process, it is generally the case that complainants and respondents
are encouraged to speak for themselves and take an active role in the
conciliation discussions.
How you can assist with conciliation
Advocates and lawyers can assist a complainant or respondent prepare for a conciliation process by:
- advising their client about the law and the strengths and weaknesses of their case
- advising their client about what will happen in the conciliation process
- assisting their client explore a range of possible outcomes and consider how far they are willing to compromise to resolve the complaint; and
- advising their client about what may happen if the complaint is not resolved by conciliation, including providing information about the process, fees, cost and possible outcomes of any subsequent court action.
During the conciliation process it is expected that advocates and lawyers will:
- act in a way that supports the purpose and objectives of the conciliation process
- engage in effective communication which will assist in the resolution of the complaint
- allow their client to participate directly in the process
- assist their client to express their views and put forward and explain their proposals to resolve the matter
- assist their client reality test settlement offers
- work with the conciliator to explore all possible options for resolution, and
- assist in the drafting of any conciliation agreement.
Where a complaint is resolved by conciliation, it is expected that advocates or lawyers who have been involved in the process will;
- assist their client to ensure time frames outlined in the conciliation agreement are met, and
- ensure that they meet any time frames for action they have agreed to take on behalf of their client.
How the Commission can assist you
The conciliator will be available to
assist you and your client prepare for the conciliation conference. During the
conference you will be provided with opportunities to speak privately with your
client. You and your client will also have the opportunity to meet privately
with the conciliator to discuss any questions or issues.
Additional information about the conciliation
process can be found on the HREOC website at: http://www.humanrights.gov.au/complaints_information/.
You
may also like to read a summary of conciliated complaints available on the Conciliation Register. The summaries are de-identified, outline the issues
raised in the complaint and the terms on which the complaint was settled. This
information may assist you and your client in preparing for a conciliation
process
