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National Mediation Conference 2012

Unlocking the door: Rethinking approaches to determining the suitability of disputes for conciliation

Lynne Coulson Barr Deputy Commissioner & Doctoral Candidate Monash University

Background
Disability Services Commissioner established 2007 Disability sector with no experience in conciliation Legislation requires decisions on suitability Early challenges to decisions on suitability of matters Issues in perceptions of conciliation

Images of conciliation

Conciliatory- Dictionary definitions


to appease to placate or reconcile to regain or try to regain (friendship or goodwill) by pleasant behaviour making or willing to make concessions pacifying, disarming, mollifying, soothing

Conciliation- definition
Diverse applications & wide range of approachesincluding those similar to mediation NADRAC definition includes an advisory role on process, outcomes and statute Statutory conciliation: conciliator will actively encourage the parties to reach agreement which accords with the advice of the statute.

Issues in decision-making on suitability


Legislation commonly requires decisions on suitability or likelihood of success/resolution Issue of lack of reliable, empirically validated criteria or predictors of success for ADR processes Evidence tends to be inconclusive or contradictory Disconnect between existing legislative imperatives and ADR research findings not commonly identified Issue of decisions about access to justice

Outline of Research
To identify the key factors and processes used to determine suitability for statutory conciliation 17 statutory bodies with jurisdiction to conciliate complaints about:

health services disability services discrimination, equal opportunity, and issues of human rights

Particular focus on access for people with a disability Aim to propose a framework or model to inform best practice in decision making

Outline of research (cont)


Methodology: combination of questionnaires, interviews and review of documentation Questions: included model of conciliation, factors taken into account, most common reasons unsuitable Results: All 17 statutory bodies agreed to participate in research-interviews conducted with all. Level of participation and interest significant

Preliminary Findings-some key themes


1. Diversity of legislative basis and approaches

Processes undertaken in assessment stage in one jurisdiction may be undertaken as part of conciliation in another Its like comparing apples with pears Decisions about substance and thresholds vary Diversity a challenge for addressing perceptions & developing common practice framework

2. Shifts to early conciliation/resolution models


Changes in approaches: presumptive approach to suitability and adoption of models of early conciliation Examples: limited assessment, convening conferences without written responses to complaints Reasons: Efficiency imperatives- timeliness & resources Experience of negative impact of written responses & delays through assessment/investigation processes Growing influence of ADR/non-adversarial paradigms

We really have to stop this paper warfare as it is

not conducive to resolution. It is entrenching positions and not using the skills we have.
It gets more and more positional the longer the wait for responses.there was a real disadvantage to waiting for the response and scheduling the conciliation down the track.. Previously most complaints were investigated and findings made on the reasonableness of the providers actions.parties became firmly entrenched in their rights and not willing to conciliate

3. Criteria & approaches to decision making


Presumptive model of suitability most common Decisions that matters are not suitable not often made- more often implicit decisions Only 3 statutory bodies with documented criteria All identified explicit or implicit criteria for suitability, along with challenges in applying such criteria Negative and positive criteria- most relating to participant characteristics

Negative criteria Negative attitudes/hostility of parties Parties unwilling to participate Parties not acting in good faith Unrealistic expectations of complainants power imbalances, entrenched conflicts, long histories, previous attempts to resolve matter Positive criteria Demonstrate good will in communication Able to demonstrate an open mind Willing to resolve dispute Complainants objectives lend themselves to amicable negotiations Other: public safety/interest issues

3. Criteria & approaches to decision making (cont) Common factors-negative attitudes, unwillingness, resistance The difficulty we have is that conciliation is a new concept for providers and we are getting resistance Complainants can want the provider to be punishedthey want us to investigatethey may not see the value of conciliation Need to explain and educate parties about process and benefits of conciliation We have to sell the benefits of conciliation

Key issue for decision making on suitability


Whilst most often described in terms of party characteristics, suitability is also implicitly dependent on capacity, skills & resources of organisation to educate and work with resistance/high conflict An interactive decision rather than a diagnostic one Largely unrecognised and unique issue for statutory decision making

4. Access & capacity issues Most common response: involvement of advocates or support people/guardians or use of shuttle Limited examples of direct participation of people with cognitive impairments Another unrecognised issue in decision making: Persons capacity to participate may be dependent on the skills of the officer and resources/approaches developed by the organisation.

5. Rethinking approaches to determining suitability Emerging themes & changes in approaches point to need to rethink approaches to suitability decisions Rather than deciding whether a matter is suitable for conciliation, we look at what approaches may be needed to make it suitable Need sophisticated judgements in each case

Turning the questions around:


How can we make this dispute suitable for conciliation? What is our capacity to facilitate access & participation? Shifts focus from party characteristics or capacity to the capacity of organisation/ officer to facilitate their participation

Some examples: Decisions on paper work & timing of conferences Identifying support needs of participants Developing dispute resolution plans/designing processes Matching skills, experience and personalities of conciliators with needs of parties & dispute Safeguarding options such as deferring settlements Identifying potential barriers to participation/resolution Options such as pre conciliations, coaching, coconciliations, shuttle processes Accessible processes and resources

Example of pictorial resource for conferences

Background

Have Your Say

What needs to happen to improve the situation?

Private Meetings

Agreed Actions
To do: 1. 2.

3.
4.

Towards an enabling model of decision making


Requires a new way of thinking about suitability:

Purposive not literal interpretation of legislation Defining success and resolution Likely to resolve = Potential benefits? Changing the questions to: How can we Change the decision making focus to enabling participation and access to a process A focus on effective and fair access for all

Contact Details
Level 30, 570 Bourke St Melbourne VIC 3000 Ph: 1300 728 187 TTY: 1300 726 563 Lynne.Coulson Barr@odsc.vic.gov.au www.odsc.vic.gov.au

www.odsc.vic.gov.au