Question Eleven - How should the term 'conciliation' be defined or described?
See (1 & 5)
It should be defined in line with international usage.
Law Society of SA
It is too difficult to define conciliation separately to mediation. It is entrenched in many different ways of practice.
The term conciliation should be defined so that it is clear that it a different process from mediation. It should be clearly defined or described as referring to those processes where advice is given and be distinguished from the term mediation in that way. Mediation should therefore assume that advice or evaluation is not given. This also responds to Question 12 below.
The term “conciliation” adds yet another layer of complexity. The Law Institute encourages the ADR community to phase out this expression so far as possible.
Where the word arises under statute, hopefully the statute will set out what is required.
To the extent that “conciliation” as a separate concept must be retained, we support the definition contained in NADRAC’s 1997 Definitions Paper, which said:
Conciliation is a process in which the parties to a dispute, with the assistance of a neutral third party (the conciliator), identify the issues in dispute, 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.
In Australia the term conciliation is used loosely but generally. It implies a process used to resolve legal issues and it is a feature of legal practice in most jurisdictions although it is practiced differently in many. Definition of that term can only encapsulate the common threads, which appear to be:
The dispute resolver is a Court Officer or a trained conciliator who is empowered to make binding directions in respect of the conciliation process, give advice, and exclude options.
A process which is Court or tribunal based.
Designed to resolve legal issues.
Decision making is by consensus of the parties.
The outcome is capable of being documented in terms that are legally binding on the parties.
Question Twelve - To what extent should the term ‘mediation’ assume that advice or evaluation is not given?
No assumption possible for most services
Mediation should always assume that advice or evaluation is not given and should explicitly state it if the mediation will be evaluative or advisory.
Law Society of SA
Parties should decide at the outset whether the mediator takes an advisory role.
Law Institute of Victoria
The Law Institute takes the view that the critical issue is transparency in any given case, not whether there is advice or evaluation.
We note that some participants in fact prefer an ADR Practitioner who will “get their hands dirty in the substance of the dispute”. Practitioners should be encouraged to declare that approach, and whether they give advice or evaluate, openly and clearly.
NSW Law Society
In New South Wales the Courts Legislation (Mediation and Evaluation) Amendment Act includes definitions of Mediation and Neutral Evaluation. In response to this the Law Society has adopted models of Mediation and Neutral Evaluation. The Society recognises that its definitions are not identical to those in the relevant legislation. In our jurisdiction the evaluator reports to the Court only that an evaluation has occurred, and not the details. The model of evaluation advocated by the Law Society provides that the evaluator hears the parties’ statements and reads any relevant reports or documents any evidence and allows the parties to question and try to clarify matters and try to agree on common ground. (S)he hears submissions and then leaves the meeting to consider the matter and prepare an evaluation of what would be the outcome if the matter were heard by the Court. The evaluator then returns to the meeting without disclosing the decision. The evaluator can then with the consent of the parties, chair a discussion of settlement prospects but cannot act as a mediator or conciliator or undertake a mediation process (e.g. option generation). His or her role is strictly as Chairperson. If the matter does not settle, (s)he then hands down the Evaluation Report. This process allows the Evaluator to use a number of different sub-processes to achieve a settlement. This evaluation procedure is not widely used. Provided that the Evaluation Report is prepared before the negotiation stage begins, and the Report is, for example, placed in a sealed envelope, the Evaluator could more freely participate in the negotiations and use mediation techniques to assist the parties to reach an agreement. There are similar models of arbitration/mediation used in other jurisdictions, where the Arbitrator hears the evidence, writes his decision and places it in a sealed envelope. He then mediates the dispute and it is only if the parties fail to reach agreement that the award is disclosed.
Question Thirteen - Should courts (and other organisations) be encouraged to use terms other than ‘mediation’ for facilitative ADR processes conducted by their own officers?
Court-based mediation/conciliation/ADR etc. is sufficient to indicate the source.
It is the description of the process and the role of the third party that is important, not the setting. There is no reason to encourage courts or any other organisation to use other terms providing that the process is actually mediation. Creating new terms to describe the same processes in different settings will only create more confusion and complexity in ADR terminology.
However, there is no doubt that the courts' use of the term mediation to describe what is (and always was) more properly described as a “settlement conference”, has slowed the development and progress of mediation as a process in its own right.
Many parties' perception of mediation is based on their experience with a court based mediation conducted by a quasi judicial officer (usually with the threat of a costs sanction for improper participation - Capolingua v Phylum Pty Ltd (1991) 5 WAR 137). The contrast between a consensual mediation with a private mediator paid for by the parties is often vast in terms of outcomes and actual process content.