Summary publication

Alternative Dispute Resolution in the context of
Anti-Discrimination and Human Rights Law:
some comparisons and considerations[1]

Tracey Raymond & Jodie Ball
Human Rights & Equal Opportunity Commission [2]

2000



Introduction

The aim of this paper is to examine the use of Alternative Dispute Resolution [3] (ADR) in the context of the administration of complaints under anti-discrimination and human rights law.

The first section of the paper will consider issues related to the appropriateness of ADR in this context and particular issues that arise for practitioners working in this field. The second section of the paper will highlight various approaches to alternative dispute resolution incorporated within the complaint handling processes of agencies administering such legislation in Australia and overseas. The third section of the paper will look in more detail at the conciliation work of the Australian Human Rights Commission (AHRC) and locate AHRC's conciliation practice in relation to the work of similar agencies in Canada and the United States. The final section of the paper will highlight developments in AHRC's complaint handling practice that have occurred over the past 5 years and consider ongoing challenges for the organisation.

ADR in the context of anti-discrimination and human rights law

Human rights and anti-discrimination law in Australia, New Zealand, the United States, Canada and many other countries provides individuals and groups with a right to lodge a complaint with an administrative agency who has responsibility for the investigation and conciliation [4] of such complaints. The conciliation process can be said to be undertaken in the 'shadow of the law' with the option of complaints being heard by an administrative tribunal or court if conciliation is not appropriate or is unsuccessful.

The use of ADR in this context has been considered by a number of academics who, while noting benefits, have also drawn attention to limitations and concerns. On one hand informal resolution processes are seen as being more efficient and cost effective, better able to deal with the emotional and value laden content of such disputes and more appropriate to the educative purposes of the legislation. It can also be argued that, as complainants alleging discrimination are likely to come from more disadvantaged groups within society, informal dispute resolution mechanisms provide an accessible process which enables parties to maintain control of the dispute and attain outcomes reflective of their needs.

Criticisms of the use of ADR in this context echo broader criticisms of ADR generally. For example, the conciliation process has been described as a form of second class justice in that it delivers adhoc justice which is not open to public scrutiny and does not have any of the procedural safeguards of the formal justice system [5]. Criticisms also focus on the perceived limitations of informal resolution procedures to enable broader social change [6]. Critics argue that the individualised and confidential nature of conciliation settlements mean that systemic discrimination is not addressed, that discriminatory acts are hidden from public scrutiny and accordingly, that any potential for broader social change is diffused. Criticisms also focus on the potential for power imbalances in the process with those who are less articulate, less assertive and have less emotional and financial resources (usually complainants) being disadvantaged in the negotiation process. Additionally, it is claimed that limited public information on past settlement terms combined with the 'neutral' role of the conciliator results in complainants accepting settlement terms far below what could be achieved at public determination.

While limitations of ADR in this context must be acknowledged, it is important that criticisms of the conciliation process are not merely accepted at face value. As will be highlighted in the following sections, simplistic assumptions and generalisations about the conciliation process are problematic. Examination of the work of a selection of agencies administering anti-discrimination and human rights legislation [7] reveals a range of approaches to complaint resolution. Within this variety of approaches one can observe the potential for complaint resolution to be conducted in a manner which maximises the benefits of informal resolution and minimises possible disadvantages in process and outcome.

An overview of approaches to complaint resolution

Anti-discrimination and human rights law generally requires agencies to 'investigate' and 'conciliate' complaints. The image derived from the law is of a linear process in which investigation precedes conciliation. Parties to complaints which satisfy the relevant substance threshold are provided with the option of participating in a voluntary conciliation process or, in some cases, required to attend a compulsory conciliation conferences.

The term 'conciliation' within the legislation is best understood as a generic term and legislation provides only minimal guidance as to the form or process of conciliation [8]. Common parameters for the process of conciliation are drawn from the law and from context. For example, all legislation refers to the confidentiality of the conciliation process [9] and it is generally understood that within a statutory context, the law provides boundaries for the content and outcome of the dispute.

The National Alternative Dispute Resolution Advisory Council (NADRAC) has defined statutory conciliation in the Australian context as:

"….a process in which the parties to a dispute which has resulted in a complaint under a statute, with the assistance of a neutral third party (the conciliator), identify the disputed issues, develop options, consider alternatives and endeavour to reach an agreement. The conciliator may have an advisory role on the content of the dispute or the outcome of its resolution, but not a determinative role. The conciliator may advise on or determine the process of conciliation whereby resolution is attempted, and may make suggestions for terms of settlement, give expert advice on likely settlement terms, and may actively encourage the participants to reach an agreement which accords with the requirements of that statute." [10]

While this definition can be said to reflect general parameters for the conciliation process, closer examination of the work of various agencies administering human rights and anti-discrimination legislation reveals a spectrum of ADR approaches incorporated under the banner of 'conciliation'. These approaches can be differentiated specifically in terms of different levels of conciliator intervention in relation to process and outcome. Approaches can be said to vary from something resembling classic 'mediation' [11] to something akin to 'expert appraisal'. [12]

The approach to conciliation can be said to vary within agencies in terms of when resolution is attempted and across agencies in relation to the perceived role of the agency. This variety of approaches can also be understood in terms of the manner in which different agencies seek to balance competing ideals in this context. Competing ideals within this context include the broad social goals of anti-discrimination legislation, administrative law requirements of natural justice and procedural fairness [13], traditional ADR notions of the conciliator as a 'neutral third party' and self-determination of parties in relation to process and outcome.

Examination of agencies reveals that rather than a linear investigation - conciliation process, alternative dispute resolution is woven through the complaint process with options for resolution of complaints occurring at different stages of the process. Complaints may be resolved prior to an investigation, during or after preliminary investigation, during or after formal investigation or after referral for hearing by an administrative tribunal/court. In many agencies resolution at different stages of the process is differentiated by the use of different procedural terms. For example while AHRC uses the legislative term 'conciliation' to describe resolution at any stage of the complaint handling process, the Federal Equal Employment Opportunity Commission [EEOC] in the United States differentiates 'conciliation' - a process that occurs after a full investigation and decision on substance - from 'negotiated settlement' - a process which takes place prior to a decision as to the substance of the complaint and from 'mediation' - a process which takes place prior to any investigation of the complaint. The Canadian Human Rights Commission [CHRC] also differentiates 'conciliation' - a formal process that occurs after completion of investigation from 'early resolution' - a process which occurs during the investigation process.

Regardless of whether different procedural names are used, different approaches to complaint resolution are apparent in most agencies at different stages of the complaint process. For example, a conciliator is likely to be less interventionist in relation to outcome where resolution is attempted at an early stage of the complaint process and more interventionist after completion of a full investigation. This is understandable in that at an early stage of the complaint handling process issues in the complaint may be ill-defined and the substance of the complaint under the law unclear. Following detailed investigation the substance and facts of the complaint will be more apparent and therefore, it may be considered more appropriate for the conciliator to actively participate in facilitating an outcome which accords with the law and is reflective of previous conciliation and tribunal outcomes.

As noted above, different approaches to conciliation will also be reflective of different roles and different legal contexts in which agencies operate. In particular, there is an observable difference between the role and work of agencies in the United States and Australia and, to some extent, between agencies in Canada and Australia.

Agencies in the United States which see themselves as 'law enforcement' agencies generally adopt a more interventionist role in the later stages of the complaint handling process. For example, the legislation empowering the New York Divison of Human Rights states that the Division will investigate and "… endeavour to eliminate unlawful discrimination practices by conference, conciliation and persuasion". Title VII of the Civil Rights Act in the United States [administered by the EEOC] states that "…. the Commission shall endeavour to eliminate any such alleged unlawful employment practice by informal methods of conference, conciliation and persuasion". The connection between the broad purposes of the legislation and the conciliation of complaints is less direct in Australian legislation. [14]

The EEOC has a different role to its Australian federal counterpart in that the organisation has the power to litigate a complaint in the Federal Court if conciliation is unsuccessful. The EEOC sees its role as one of investigation and law enforcement rather than investigation and complaint resolution. Accordingly, the conciliation work of the EEOC has traditionally had a more interventionist flavour. The revised EEOC complaint handling process introduced in 1995 [15] provides for optional voluntary 'mediation' on lodgement of a complaint, 'negotiated settlement' at any time after commencement of investigation and 'conciliation' on conclusion of full investigation. The role of an officer in conducting 'mediation' reflects the neutral third party role of classic mediation. An officer's role in conducting 'negotiated settlement' is described as -" a neutral third party who provides information to parties about resolution options and assists parties reach a reasonable settlement in light of the type of case, strength of evidence and stage of processing" [16]. As EEOC 'conciliation' occurs after full investigation and after the organisation has determined that there is 'reasonable cause' to believe that the allegation is true, the conciliation officer takes a proactive role in determining settlement terms (in consultation with the complainant) and putting these terms to the respondent on behalf of the EEOC. Settlement terms are calculated on the basis of what the complainant could obtain in litigation and include terms to ensure the prevention of any further discrimination. The EEOC is a party to a conciliation agreement and must approve settlement terms. The conciliator is not seen as an advocate for the complainant as such, but rather as an advocate for the 'public interest'. A similar approach is adopted by the New York Division of Human Rights.

The EEOC's highly interventionist approach in relation to outcome differs from the general approach adopted in Australian jurisdictions. This can be attributed to different agency roles, to the traditional focus in Australian jurisdictions on 'investigation for conciliation' rather than 'investigation for law enforcement', to associated different thresholds for conciliation and to particular understandings of 'impartiality' that have emerged in response to Australian administrative law review. While the purpose of investigation within the EEOC is to determine if there is reasonable cause to believe that the allegation is true and as such, to determine if the mater is litigation worthy prior to proceeding to conciliation, AHRC and other Australian agencies utilise a conciliation threshold formulated in negative terms. That is, a complaint will proceed to conciliation if there is no basis on which to recommend that the complaint is 'lacking in substance'. Legal consideration of the term 'lacking in substance' at a federal level has indicated that this is a relatively low threshold, a complaint only being seen to be 'lacking in substance' where it "….presents no more than a remote possibility of merit or …does no more than hint a just claim" [17]. Clearly an organisation will be more interventionist in relation to outcome and more declarative of the public interest in conciliation where the organisation has a role to determine prior to conciliation that there is reasonable or probable cause to believe that the allegation is true. Additionally, in the Australian context, the 1985 federal court confirmation of the applicability of principles of natural justice and procedural fairness to the conciliation of anti-discrimination complaints, can be said to have influenced a somewhat cautionary approach to conciliator intervention in process and outcome. [18]

While the role of the Canadian federal anti-discrimination and human rights agency, is similar to that of AHRC in that it does not litigate complaints or act for complainants, the CHRC's approach to complaint resolution at completion of a full investigation, bears some resemblance to the approach of the EEOC. Within the CHRC the conciliator is seen as representing the 'public interest' in preventing and remedying discrimination and the conciliation role has been described as "…active intervention and negotiation with parties to achieve a full and fair remedy for the complaint in light of the facts of the case, weight of evidence and relevant precedent" [19]. The CHRC conciliation process commences with the conciliator considering legal precedent and determining parameters for a full and fair settlement of the complaint at hand. These parameters then form the basis for the parties' negotiations. The CHRC is a party to conciliation agreements and must approve settlement terms. As will be highlighted in the following section, the difference between the CHRC's approach to conciliation and that of the AHRC can be attributed, in part, to AHRC's focus on ensuring an appropriate level of party self-determination in relation to outcome [20]. This is not to say that the AHRC conciliator does not have a 'public interest' role or will not, in some circumstances, intervene in relation to the fairness and justice of proposed settlement terms. However, the scope and parameters for such intervention are conceived of differently.

The above brief review of approaches to the conciliation of complaints highlights the subtle differences that exist across and within agencies. These different approaches to conciliation reflect the various ways in which agencies seek to balance conflicting ideals and maximise the benefits and minimise the disadvantages of ADR in this context. For example, the abovementioned focus of the EEOC and CHRC on controlling /influencing outcomes with reference to broader objective notions of fairness and justice is an approach which seeks to minimise potential for second class justice for individuals and to maximise the broader social purposes of the legislation. Such an approach however operates at the expense of party control and self-determination.

Conciliation as conducted by the Human Rights & Equal Opportunity Commission

Overview

The Commission is empowered to investigate complaints under federal human rights and anti-discrimination legislation and to attempt to resolve complaints by conciliation, where this is considered appropriate. Prior to 13 April 2000, complaints of unlawful discrimination which could not be conciliated or were considered inappropriate for conciliation were referred for public hearing before the Commission. As of 13 April 2000, in response to changes to the legislation administered by the Commission, complaints of unlawful discrimination that are unsuccessful at conciliation or considered inappropriate for conciliation are terminated, termination providing complainants with a right to make an application for the Federal Court to hear and determine the complaint. [21]

Federal legislation does not require conciliation to be attempted with every complaint and the President may terminate a complaint for a number of reasons, including where satisfied that the complaint is lacking in substance or misconceived, where the alleged discrimination is not unlawful or where the subject matter of the complaint involves issues of public importance that should be considered by the Federal Court [22]. In light of expressed concerns about the predominance of privatised justice in the complaint handling process, it is important to note that Australian federal law provides an avenue to enable matters of significant public interest to bypass the conciliation process and move directly to the Federal Court for public determination. However, it is AHRC's view that any decision to terminate a complaint on the ground of 'public interest' must involve balancing what may be in the broader public interest with the rights of parties to choose a private and less formal resolution process.

When does resolution occur and what form can it take?

Complaints can be resolved through conciliation proceedings facilitated by the Commission or through direct negotiations between the parties. While complaint resolution can occur at any stage of the process it is generally the case that conciliation takes place on conclusion of investigation and is voluntary in nature. [23] In some cases an attempt will be made to resolve a complaint either prior to commencement of a formal investigation or before a response to the complaint has been received. This may occur at the instigation of the Commission or the parties. For example, the Commission may informally notify respondents of a complaint and test options for early resolution where what the complainant is seeking appears relatively straightforward or where there is an urgent need to try to resolve the conflict at the centre of the complaint [24]. The Commission may also include an invitation to participate in conciliation in initial correspondence which commences the investigation where there appears to be a prima facie case of discrimination, where it appears that the validity of the complaint will depend primarily on an assessment of the credibility of the parties [25] and/or where the parties are in an ongoing relationship.

In attempting to resolve complaints, AHRC utilises a range of methods including, face - to - face conciliation conferences, shuttle conferences, teleconferences and shuttle telephone negotiations.

Unlike the EEOC and the CHRC, AHRC is not a party to conciliation agreements.

Approaches to resolution

While approaches to resolution within AHRC will vary somewhat in accordance with when conciliation is attempted, the NADRAC definition of 'statutory conciliation' as outlined above, accurately defines parameters for the conciliation work of AHRC. Regardless of when conciliation is attempted, conciliators are seen to have a legitimate role in intervening to ensure a fair and just process, giving advice on likely settlement terms and intervening to ensure outcomes that accord with the intent and purpose of the legislation administered by the Commission.

AHRC is of the view that power differentials between parties in the context of anti-discrimination and human rights disputes must be considered and addressed if the process is to be just and fair and that intervention to enable a fair and just process is central to the achievement of fair and just outcomes. The Commission's legislation supports the positive intervention of the conciliator to ensure that a party is not significantly disadvantaged in proceedings and to assist the parties participate on equal terms [26]. Ensuring a fair and just process requires moving beyond notions of formal equality as clearly treating unequals equally will exacerbate rather than ameliorate party disadvantage. As has been highlighted by authors such as Cobb and Riftkin, this interventionist approach to enable substantive equality of process does not constitute a breach of conciliator impartiality or neutrality. Neutrality can be seen to involve not only a requirement to be aware of and restrain from imposing personal bias on the process but also a requirement to act positively to maintain equality of process. [27] Strategies employed by AHRC conciliators to enable substantive equally of process include:

  • providing information about process in a manner which ensures, as far as possible, that parties have an equal understanding of the process, possible advantages and disadvantages of the process and available alternatives;
  • providing parties with information about external resources that may assist them during the conciliation process if it appears that such assistance is required to enable equal participation [28];
  • adaptation of the process to enable parties to participate on substantively equal terms, for example by increasing the informality of the process or utilising techniques such as shuttle conferencing;
  • provision of interpreters or other aids where necessary to enable adequate participation;
  • control of attendance and process;
  • control of the physical environment to ensure environmental aspects do not exacerbate power imbalances [29].

Intervention to ensure substantive equality of process must, however, be conducted in a way that avoids perceptions of conciliator bias or favouritism toward one party. AHRC is of the view that the purpose of any different treatment should be explained in a manner which enables stronger parties to understand that the intention is to create a more level playing field. Further, it should be explained to parties that such intervention will benefit both sides in that the dispute is more likely to be resolved if both parties feel they are able to participate effectively and on an equal basis.

While a focus on fair and just process is central to ensuring fair and just outcomes, conciliators are also seen as having a legitimate role in intervening in relation to outcome. The extent and form of intervention by the conciliator in relation to outcome will vary in terms of the stage at which conciliation is attempted. Where conciliation is attempted prior to formal investigation, the conciliator's approach is likely to focus on explaining the parameters and intention of the law, assisting the parties to articulate the complaint and the response and find a practical solution to the conflict at the centre of the complaint. In doing this the conciliator may still play an active role in suggesting and exploring settlement options with the parties and facilitating discussions which test the feasibility of these options. The conciliator's approach on conclusion of investigation or where there is a prima facie case, will generally be more interventionist and is likely to involve the conciliator providing feedback to both parties on strengths and weaknesses of the case as assessed by the Commission, providing information on settlement and hearing precedent in similar cases, assisting with generation and testing of settlement options and providing information about possible future handling of the case if settlement is not achieved. The conciliator's role in assisting parties to explore options for settlement provides significant opportunities for the introduction and discussion of settlement terms which seek to address the broad purposes of the legislation and have implications for systemic change.

The role of the AHRC conciliator is focused on the provision of information about process and possible settlement options and facilitation of process to ensure parties are able to make informed choices about settlement terms. The conciliator does not, apart from in circumstances discussed below, advise what is a just or fair outcome. Nor does the conciliator, as in some overseas jurisdictions, calculate the amount of compensation that may be due to the complainant as determined by precedent and present this as an appropriate start or end point of negotiations. While a AHRC conciliator can, in preparation for conciliation, give consideration to what factually similar cases have been awarded at hearing, AHRC's approach recognises that a fair and just outcome for a particular case should be understood not only in terms of decisions made by courts or tribunals but also in terms of what the complainant perceives as being a fair and just outcome in the circumstances. In many cases the outcome most desired by the complainant is one which can not, or is unlikely to be obtained through a hearing or court process - for example an apology, implementation of EEO policies, improved employment opportunities or action plans for ongoing modifications of premises, practices and procedures.

There are circumstances, however, in which it is considered acceptable for a conciliator to comment directly on the perceived justice or fairness of a proposed outcome. The Commission's legislation espouses certain human rights and public policy principles and any settlements facilitated by AHRC must accord with those principles. Section 28 of the AHRCA states:

"The Commission shall, in endeavouring to effect a settlement of the matter that gave rise to an inquiry, have regard to the need to ensure that any settlement of the matter reflects a recognition of human rights and the need to protect those rights".

Thus the legislation is seen to provide a reference point beyond which an outcome cannot be said to be either fair or just. This reference point represents a public standard of justice and fairness and as such, recognises that disputes brought to the Commission cannot be understood as merely private concerns. Where an outcome proposed by the parties appears to contravene the purposes of the legislation, a conciliator is required to advise the parties of this and that AHRC will not continue to facilitate the formulation of an agreement which contains such terms. [30]

Addressing the challenges of ADR in this context

In a manner similar to many Australian and overseas agencies, AHRC's complaint handling has developed and improved over time. As highlighted in the above overview of AHRC's conciliation practice, AHRC has sought, within the broader legal and administrative environment in which it operates, to develop an approach to the conciliation of complaints which maximises advantages and minimises disadvantages of ADR in this context. In particular AHRC has sought to develop an approach which is mindful of, and responsive to, the broad purposes of the legislation and concerns regarding fairness and justice in process and outcome. Some of the specific, more recent developments undertaken by AHRC to this end are outlined below.

AHRC regards the provision of quality information in relation to the conciliation process and conciliation outcomes as an important means of addressing power imbalances, ensuring fair outcomes, maximising party control and addressing issues relating to the privatisation of justice. AHRC has developed written information on the conciliation process for complainants and respondents and has also sought to ensure that parties have access to information on determinations and conciliation settlements. This information provides a public reference point for private settlements. AHRC has traditionally reported on a selection of conciliation outcomes in its Annual Report and in other Commission publications [31]. In addition, AHRC has recently finalised development of a Conciliation Register, which provides information about outcomes of conciliated complaints under each Act administered by the Commission. This information is, of course, reported in a way which protects the privacy of the parties and the confidentiality of the agreement, where relevant. [32] The Register is available on AHRC's website and in hard copy. AHRC hopes that this information will not only be a valuable resource for parties to complaints but will also enable increased public awareness of the issues and outcomes of complaints under federal legislation.

Documented information on AHRC's conciliation process is not only of assistance to parties but is central to ensuring accountability and consistency of service. Over the past 5 years AHRC has devoted resources to the development and update of a comprehensive Complaint Procedures Manual which provides guidelines for staff in relation to AHRC's conciliation practice.

AHRC has also sought to improve the accountability and quality of its complaint handling service through the development and implementation of a Service Charter and a Service Satisfaction Survey. The Service Charter has been placed for over there years. The Charter provides a clear and accountable commitment to service and an avenue by which complainants and respondents can understand the nature and standard of service they can expect. The Charter also provides an avenue for complaints about service delivery. The Service Satisfaction Survey commenced operation in December 1997. The survey process involves conducting telephone surveys with complainants and respondents from a random selection of finalised files each month. Survey results are collated each year and reported in AHRC's Annual Report. While the survey deals with all aspects of the complaint service and seeks feedback in relation to complaints which have also been terminated and referred for hearing, results are cross-referenced by outcome and as such, the survey can provide an overview of satisfaction with the conciliation process. The results for the past two years have been most encouraging and have assisted identification of areas for further improvement in service delivery.

In recognition of the importance of ongoing training and professional development to the provision of accountable and quality conciliation practice, AHRC has created a Senior Training and Policy position within its Complaint Handling Section. This position has responsibility for training new staff, ongoing professional development of staff and quality assurance of complaint handling services. Over the past 5 years, AHRC has also directed significant resources to the development of training programs in administrative investigation and statutory conciliation. In 1995 AHRC worked with Dr Greg Tillett, a well-respected ADR practitioner and author, to develop a comprehensive conciliation training package for AHRC staff. This training package provides essential theoretical knowledge and practical skills for the conduct of conciliation in the specific context of anti-discrimination and human rights law. The course not only ensures staff have a common understanding of AHRC's practice and procedures but highlights the theoretical basis for this practice and assists staff explore various issues for practitioners working in this field. In particular the course emphasises the legal and ethical responsibilities of the conciliator and assists staff understand how, within the context of their role, to employ strategies to facilitate fairness and justice in process and outcome. The course is run on a regular basis for AHRC staff and staff from anti-discrimination agencies around Australia [33].

This training course is supplemented by an on-the-job training program that requires new conciliators to observe a number of conferences run by experienced officers and to be supervised and assisted by a senior officer at their initial conferences.

Future challenges

As highlighted by this paper, the use of ADR in the context of administration of anti-discrimination and human rights legislation is an area of significant complexity and one that will continue to be the subject of debate and discussion. While the challenges facing ADR in this context can be said to reflect challenges and trends faced by ADR in general, issues related to fairness and justice in process and outcome continue to be an ongoing focus for AHRC. Additionally, issues related to the extent of the 'shadow of the law' over conciliation proceedings have a particular resonance for AHRC at this time. AHRC is mindful that recent changes to federal legislation may impact on the conciliation process as it is currently operating.

As noted previously, recent legislative changes mean that now where conciliation is unsuccessful, complainants may commence a 'de novo' action in the federal court in relation to the alleged discrimination. These changes have ensured the enforceability of decisions under federal law and have also provided a powerful avenue for public condemnation of discrimination. However, it is recognised that there is a level of community concern that the formality and associated costs of the court will discourage parties from lodging matters under federal legislation [34], discourage parties from pursuing matters to determination and also impact on the attitude of parties, presentation of matters and power differentials at conciliation. There is, for example, apprehension that legal advisers will become more frequent players in the conciliation process and that there will be an associated increase in the formality and adversarial nature of conciliation proceedings. AHRC is mindful of these concerns and the associated need for conciliators to maintain their focus on conflict resolution and maximising party control. There is also concern that the hesitancy of complainants to pursue matters in court will decrease their bargaining power in relation to settlement outcomes. While this possibility must be acknowledged, it must also be noted that the enforceability and status of court determinations may well act as an incentive for respondents to settle complaints at conciliation. Additionally, complainant concerns in relation to court proceedings may decrease with increased knowledge of the conduct and outcome of court cases. It is noted that the court has discretion in relation to waiving fees and issuing cost orders and has sought to adapt its process to ensure increased responsiveness to the type of issues faced by parties to anti-discrimination complaints [35]. Clearly, consideration of the impact of the changes on the conciliation process and appropriately responding to these changes will be a focus for AHRC over the next twelve months.

As people who make complaints to anti-discrimination agencies like AHRC, are likely to come from disadvantaged groups within society, improving the accessibility of the complaint handling service is a constant challenge for AHRC. Over the next year AHRC will also focus attention on strengthening the accessibility of all aspects of its complaint handling service. At present AHRC operates circuit type arrangements for conciliation conferences in various states to ensure geographical access to the federal complaint process. AHRC's complaint handling section has also established an access working group to identify and develop strategies to remove any barriers that impede the effective use of the AHRC's complaint handling process by particular groups within our society.

Conclusion

The practice of ADR in the context of anti-discrimination and human rights is an area of ongoing interest for academics and practitioners because it is a context fraught with contradictions. Firstly the client group serviced by the law tends to be those that would most benefit from a more informal and accessible system of dispute resolution and yet inherent in the context is the possibility of significant power imbalances between the parties and delivery of a form of inferior justice to already disadvantaged groups. Additionally, it is a context in which the public interest dimension of the legislative framework can be seen to clash with traditional ADR and legal concepts of neutrality and impartiality.

This paper has sought to highlight the problematic nature of broad generalisations about the practice of ADR in this context. The paper has demonstrated that despite general similarity in administrative investigation and conciliation procedures across various anti-discrimination and human rights jurisdictions, closer examination of agency practice reveals a variety of approaches to the conciliation of complaints both within and across agencies. In particular, the paper has highlighted differences across agencies in relation to the level of conciliator intervention in relation to outcome and sought to understand these differences in terms of attempts by agencies, within their particular context, to balance apparently conflicting ideals of individual rights and the 'public good' in a way that maximises the benefits and minimises the disadvantages of ADR.

This paper represents an attempt by AHRC to articulate and locate its practice in the broader field of ADR and to stimulate further discussion of this area of practice. AHRC is of the view that agencies administering anti-discrimination and human rights legislation have valuable knowledge of the actuality of practice and as such, can make a significant contribution to considerations of ADR in this context.


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1. An edited version of this paper was presented at the 5th National Mediation Conference, 17-19 May 2000. Feedback on this paper is welcome and can be provided to TraceyRaymond@humanrights.gov.au
2. Tracey Raymond is the Senior Training and Policy Officer, Complaint Handling with the Human Rights & Equal Opportunity Commission. Jodie Ball is a Senior Investigation/Conciliation Officer with the Human Rights and Equal Opportunity Commission.
3. This paper utilises Riekert's broad definition of ADR as "non-litigious processes with the intervention of an outside party".
4. While the term conciliation is generally used in anti-discrimination and human rights legislation, some legislation, for example Indonesian Human Rights legislation and the South African Human Rights Commission Act 54 of 1994 refer to resolution of complaints by mediation and conciliation.
5. See the arguments of Owen Fiss.
6. The conciliation process in this context has, in fact, been described as a mechanism which reinforces the rhetoric of equality within legal liberalism while actually working to limit the social change potential of anti-discrimination legislation.
7. For the purposes of this paper, attention has been focused on the work of three federal agencies; the Equal Employment Opportunity Commission in the United States, the Canadian Human Rights Commission and the Australian Human Rights & Equal Opportunity Commission.
8. Australian legislation provides some directions for the conduct of compulsory conciliation conferences and these are generally understood to provide guidance for how voluntary conciliation conferences are to be conducted. For example, the Australian federal anti-discrimination legislation specifies that the President can determine who attends a compulsory conciliation conference and the President or presiding person determines how the conference is to be run. Additional directions in federal legislation in relation to the conciliation process are discussed in more detail later in the paper.
9. Generally legislation specifies that what is said or done in the course of conciliation proceedings cannot be used in further proceedings under the legislation.
10. National Alternative Dispute Resolution Advisory Council, ADR Definitions Paper, 1997
11. Classic mediation is understood as a process whereby a neutral third party, the mediator, controls the resolution process and parties control the content and the outcome of the dispute. The mediator is said to be 'neutral as to outcome'.
12. NADRAC's ADR Definitions Paper defines expert appraisal as.. "a process in which a third party, chosen on the basis of his or her expert knowledge of the subject matter of the dispute.. investigates the dispute and provides advice as to the facts of the dispute and advice regarding possible, probable and desirable outcomes and the means whereby these may be achieved."
13. For further discussion of the tension between principles of anti-discrimination law and principles of administrative law in the Australian context see: "Women, Law and Sex Discrimination" in Sex Discrimination Act 1984: Further Directions and Strategies AHRC, 1993.
14. Within Australian federal and state legislation the objectives of the legislation, where expressed, are outlined in the opening sections of the legislation and separated from the sections dealing with the administrative processing of complaints which simply state that the President/Commission(er) must inquire into and attempt to resolve complaints under the Act.
15. In 1995, the EEOC, in response to increasing complaints and decreasing resources moved from a policy of 'full investigation and enforcement' of each complaint to an approach which encourages resolution of complaints throughout the process.
16. EEOC Operations Manual.
17. Sir Ronald Wilson in Assal v Department of Health Housing and Community Services (1992) EOC 92-409.
18. See Koppen and the Commissioner for Community Relations Qld G52, 1985.
19. Raymond, T A study of complaint handling within agencies administering anti-discrimination legislation in the United States, Canada and the United Kingdom. Report for the Winston Churchill Trust of Australia, 1996.
20. It is noted that there are also minor procedural differences in the functioning of the CHRC and the AHRC. In particular, in the CHRC the decision to proceed to conciliation is a formal decision made by the Commission. In the AHRC, the decision to discontinue an investigation (terminate a complaint) is a formal decision of the President while the decision to attempt conciliation is made at a senior officer level.
21. These changes to the hearing function of the Commission incorporated in the Human Rights and Legislative Amendment Act 1999 (Cth) were introduced to address problems in relation to the enforceability of Commission decisions as identified by the High Court in Brandy v AHRC and ors (1995). For further discussion of these changes see : Roberts, S & Redman, R, "Federal Human Rights Complaints - New Roles for AHRC and the Federal Court" in ETHOS (166) March 2000: 17-19, 22.
22. Section 46PH (h) of the Human Rights & Equal Opportunity Commission Act 1986 (Cth) (AHRCA).
23. While the Commission does have compulsory conciliation powers, these are rarely used. These powers are contained at section 46PJ of AHRCA.
24. Examples of the latter circumstances include allegations of serious harassment in an ongoing employment or detention environments and allegation of impending dismissal from employment or expulsion from an educational institution.
25. For example complaints of sexual harassment in which there is no independent evidence to support either the complainant's allegations or the respondent's denial.
26. Section 46PK(3) of the AHRCA states.. "The person presiding at the conference must ensure that the conduct of the conference does not disadvantage either the complainant or the respondent." Additionally sections 46PK(5) & (6) of the AHRCA provide that people with disabilities are able to have another person attend a conciliation conference on their behalf or nominate an another person to assist them at the conference.
27. Sara Cobb and Janet Rifkin, "Practice and Paradoox: Deconstructing Neutrality in Mediation", Law & Social Inquiry, V.16, No.1 Winter 1991.
28. For example, complainants with disabilities may be referred to appropriate advocacy services and respondents who are unfamiliar with the legislation or ADR processes may be referred to employer organisations.
29. For example, in relation to complainants or respondents with disabilities, specific attention is focused on ensuring parties can participate in the process with equal dignity.
30. An example of this would be where a term of a conciliation agreement would subject the complainant to further discrimination or where the term seeks to take away other statutory rights.
31. See for example Harsh Realities: Workplace case studies, AHRC 1999.
32. It is noted that confidentiality clauses are optional in conciliation agreements facilitated by AHRC. In a number of conciliation agreements parties have decided not to include a confidentiality clause, on the basis that there is mutual benefit from public awareness of settlement terms. Some conciliated settlements have also resulted in one or both parties issuing a media statement to publicise the settlement outcome.
33. Information about the Commission's training programs is available on the Commission's web site.
34. While the legislative changes may impact on jurisdictional choice, they will not necessarily mean a decrease in the number of complaints lodged under Federal legislation. For example, the combination of the enforceability of federal law, lack of a compensation ceiling in this jurisdiction, high conciliation rate (in 1998-99, only 12% of complaints to AHRC's Sydney office were referred for public hearing) and timeliness of the federal complaint handling process (In 1998-99 the average processing time from receipt to finalisation at the Sydney office was 8 months) may well result in an increased number of complaints under federal law.
35. In particular the Federal Court has lowered filing fees for this jurisdiction, modified court rules to include development of a new Plain English application form and provided avenues for parties to provide details of any specific requirements such as language and hearing interpreters. It is also noted that the operation of the new Federal Magistracy will provide a less formal avenue for complainants to pursue complaints.