Conciliation and mediation - a practical note

Conciliation and mediation — a practical note ^[1]

Mr M Kimber SC^[2]

In this article, Mr Max Kimber SC considers the practical differences between conciliation and mediation and discusses the experiences of consumers using these services with regard to their satisfaction.

Differences between conciliation and mediation (practically speaking)

Practically speaking, subject to the requirements of the statutory regime in a particular context (eg, workers compensation, family law, industrial relations, etc), there is little difference between the process of “conciliation” and that of “mediation”.

Accordingly, in my view, there is little utility in spending too much time (in this context) regurgitating what is being characterised by Laurence Boulle in Mediation: Principles, Process, Practice^[3] as an “extensive debate on the similarities and differences between conciliation and mediation”.^[4] For present purposes, suffice as to say that:

(a): A clear articulation of all the similarities and differences between the two processes is set out by Boulle in the section of his book at paras [5.15]–[5.22] generally. In short, the similarities between the two processes are obvious in that conciliation, like mediation, is a flexible and informal process in which conciliators have the primary function of facilitating decision-making between the parties — with outcomes predominately dependent on the parties' agreement; and conciliators, like mediators, do not render binding decisions; and
(b): It is useful to say something, however, as to what might be regarded as the significant difference(s) between the two processes.

The difference between the two processes revolves around the level or degree of intervention of the third party. In my view, it would be correct to suggest that conciliators can intervene more actively than mediators on matters of process and merit. Indeed, courtesy of the provisions of the statutory regime pursuant to which a conciliator is appointed, it may often be the case that a conciliator is required to advise the parties that they are not able to settle a particular issue in a particular way. That is, the conciliator’s intervention might be positive in terms of encouraging or advising the parties as to what would seem to be a sensible settlement; or negative ie, by indicating what the parties are unable to do in seeking to resolve the dispute, for example, by the employer agreeing to do X or a Union agreeing that the employer need only pay its workers Y.

In this sense, but again, generally speaking, conciliators usually have an advisory and an evaluative role reflective of the fact that conciliation operates at both “interests” and “rights” levels. This is in stark contrast to the role of the mediator in “facilitative” mediation and yet, on the other hand, it is difficult to sustain a clear distinction between the role of a conciliator and a mediator engaged in “evaluative” mediation.

Consistent with the fact that conciliators operate within statutory frameworks that set standards and other policy objectives, conciliators are invariably public officials as opposed to private practitioners, and as they are required to promote statutory objectives, conciliators (unlike mediators) are not permitted to be “neutral” on substantive issues — as the statute that governs the work that they perform usually imposes a responsibility to indicate to the parties what is and what is not negotiable in terms of that statutory framework.

Finally, in my own experience over many years and in the context of industrial “conciliation and arbitration systems” (at both State and federal level), it is common to expect (and not regarded as inappropriate) for a conciliator to express his/her own views with respect to the merits of particular propositions, and perhaps even as to the possible or likely outcome in any arbitration of an issue(s) — in the event that the conciliator proceeded to be an arbitrator. Of course, the consequence of expressing such views often results in one or other of the parties then objecting to the conciliator proceeding to be the arbitrator, should the conciliation fail to resolve a dispute.

By contrast, even in the context of “evaluative” mediation, it would not be expected that a mediator would go so far.

What consumers of such services like/dislike

From my experience in countless conciliations and mediations on behalf of clients over the last 30 years, I can comfortably say that the consumers of conciliation/mediation services:

1.

Express dissatisfaction with those services when:

(a): The third party has done no preparation, or inadequate preparation, prior to bringing the parties together (the event).
(b): Whether as a consequence of inadequate preparation or failure to speak to the parties separately in advance, the third party fails to appreciate the complexity of the matter and/or emotional and other difficulties that constitute real barriers to the resolution of the dispute so that, at the very least, much valuable time is lost while he/she “gets up to speed”.
(c): The third party evinces an attitude of disinterest or indifference to the process — most gallingly revealed when he/she says, “Well, the parties can use Room X for their discussions. I will be in my room. Let me know how you go/keep me posted.”
(d): The third party expresses views, especially firm views, in joint sessions (or even in private sessions) about particular arguments and about the likely outcome if the dispute were to be litigated — at least in circumstances where the parties were unaware this was in contemplation and/or opposed to it occurring, and especially when the third party simply does not have enough material to express such firm views and/or is out of his/her depth with respect to the legal issues involved. For example: “You can’t possibly win this case.”
(e): The third party (usually in private conference) seeks to put the “frighteners” on a party — with a view to “encouraging” them to settle — by emphasising the prospect of a real catastrophe if the matter were to be litigated to conclusion. For instance, blunt statements like: “Do you own your own house? Do you realise that you could lose it if this case is litigated?”
(f): The third party presuming that lawyers representing the parties have not provided proper advice and information about the nature of the conciliation/mediation process and have not conducted any risk analysis or talked through with their clients, in advance of the event, their WATNA and BATNA.

2.

Express satisfaction with the processes when:

(a): The third party avoids all the pitfalls referred to above.
(b): The third party makes at least some genuine efforts to inform his/herself about the nature of the matters in dispute in advance, and seeks access to and has read at least the key documents of relevance to the dispute.
(c): The third party talks to the parties or the representatives of the parties in advance of the event to get a “feel” for the dispute; makes a preliminary assessment as to the likelihood that the lawyers or other representatives, who will be participating in the process, understand the differences between conciliation/mediation and conducting court room litigation; and then issues appropriate directions as to what should be done in advance of the event, eg, distillation of issues, obtaining tax advice etc.
(d): The third party understands that disputes are very often not about what they appear to be, and has the capacity to identify the real agenda and to frame the real issues that need to be addressed.
(e): The third party is genuinely prepared to “roll his/her sleeves up” and work hard at identifying the real sticking points to the resolution of the dispute via a clear articulation of very specific/particular issues that need to be discussed and hopefully, resolved.
(f): The third party has strong communication skills, especially the capacity to listen and acknowledge the legitimacy of the point of view being expressed by a party (irrespective of whether the third party believes that point of view to be right or wrong; reasonable or unreasonable).
(g): The third party is continually evaluating and re-evaluating where the real “heat”/tension is coming from so as to decide which individuals to speak to at any particular point in the dispute, or what combination of people might usefully be put together, for example, the third party with the lawyers on their own, clients on their own, or a particular client on his/her own.
(h): The third party understands, especially in the context where the disputants have an ongoing relationship, that settlements reached will be most likely to “stick” if the parties “own” the settlement — rather than having one party or, worse still, both parties feeling that the outcome has been forced upon them by the third party.

^[1]Industrial Relations Commission of NSW and Queensland Industrial Relations Commission, Joint Conference 2015.

^[2]Founder of Max Kimber Communication to deliver investigation, coaching, mediation and a range of other services. Member, ADR Committee, NSW Bar Association, 2017 – present.

^[3]L Boulle, Mediation: Principles, Process, Practice, 3rd edn, Lexis Nexis, 2011, (“Boulle”).

^[4]ibid at [5.15]–[5.22].