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Dispute Resolution at the Australian Human Rights CommissionJOANA D’OREY NOVOSENIOR INVESTIGATOR/CONCILIATOR25 AUGUST 2015
Investigation and Conciliation Service
Statutory investigation and conciliation of complaints alleging discrimination and breaches of human rights under federal discrimination and human rights legislation: Australian Human Rights Commission Act 1986 (Cth) Racial Discrimination Act 1975 (Cth) Sex Discrimination Act 1984 (Cth) Disability Discrimination Act 1992 (Cth) Age Discrimination Act 2004 (Cth)
The Complaint Process Complaint triage
Closure Formal response Early conciliation
Court option Conciliation Not resolved Resolved
Resolved Not resolved
Court option / Reporting
Statutory Conciliation
Conciliator assists parties to explore issues and negotiate mutually satisfactory resolution
Held face-to-face around Australia, by telephone or through a shuttle process
Conciliator bound by confidentiality provisions, but not parties
Attendance is at conciliator’s discretion Commission can compel attendance at a compulsory
conciliation conference Conciliator must have regard to nature of conciliation
settlements
Conciliation Process
Preparatory discussions Pre-conference meetings Conciliator’s remarks Party opening statements Discussion and exploration of issues Caucus meetings Negotiation
A Blended Process
Facilitative elements
Evaluative elements
A Narrative to Inform Practice
We are not disinterested neutrals – we have a professional interest to educate about the law and further the objects of the law
We are impartial in that we are not advocates for complainants or respondents in particular disputes and we do not have a personal interest in the outcome of complaints
We provide information rather than telling parties what to do or making determinations
A Narrative to Inform Practice
We are here to assist both complainants and respondents and provide a high quality professional service
We aim to ensure that the process is fair for all involved and this may require active intervention and treating complainants and respondents differently to enable a more ‘equal playing field’
We aim to ensure that complainants and respondents make informed decisions and explore all options for resolution
Our interventions are focussed on maximising the potential for resolution
Conciliation Resources & Initiatives
Information sheets for parties Information sheet for lawyers and other
representatives Preparation questions Conciliation video – Pathways to Resolution Conciliation Register
Some Draft Statistics
The Commission finalised 2,251 complaints and received 20,020 enquiries
There was a 72% conciliation success rate 51% of all complaints were conciliated 26% of agreements included outcomes that were
systemic in nature The complaint process took an average of 3.7 months 92% of parties were satisfied with the process, with
73% rating the service as ‘very good’ or ‘excellent’ 88% of parties thought our process was fair
Challenges for Statutory Conciliators
Ideological nature of disputes Balancing facilitative and evaluative aspects of
conciliation Maintaining perception of impartiality Addressing inherent and other power imbalances Party perceptions about the strengths and weaknesses
of a complaint Principal/agent issues Time/resource constraints
Specific Tools for Statutory Conciliation
A smorgasbord of ideas and options Bring the other into the room Conciliator dance Find the pea under the mattress Focus on the issue rather than the behaviour Generic few –v- Specific one Butter before you cut Help them see the forest and the trees Questions before statements ‘Achievable’ –v- ‘Reasonable’ What’s in it for them