Conciliation

Overview

Conciliation is a voluntary process in which a third party facilitates negotiation between parties in dispute.  The procedure is similar to mediation.  However, the conciliator’s role is more active. The conciliator may give an opinion on the merits of the dispute and suggest a solution if the parties cannot put forward proposals themselves to settle the matter in dispute.

Conciliation is most commonly used found in the industrial relations, employment and family sphere. Conciliation services are offered by certain particular public bodies.  The Labour Court is the prime example of a body providing conciliation services to parties in industrial relations disputes.

The State has prescribed informal dispute resolution mechanisms by statute in various sectors and contexts.  There may be mechanisms for reference of disputes to an adjudicator, ombudsman or equivalent body. An ombudsman is typically established by statute and is independent of the organisation which he investigates.

For example, the Financial Services Ombudsman determines disputes in relation to the provision of financial services and has considerable jurisdiction to award damages on a wide range of legal and other broader “fairness” type bases.

Process I

The parties do not usually choose the conciliator. As with mediation, conciliation is confidential and “without prejudice”.  It is voluntary and any party may withdraw at any time.  The conciliator has no power to determine the matter or impose the solution.

The conciliator may hold meetings with the parties and joint meetings, as required.  He will perform the same functions as the mediator in bringing the parties forward towards an agreement.

The procedures used by an ombudsman,   adjudicator and other such bodies depends on the circumstances.  Principles of constitutional justice may require due process and fair procedures.  In some cases, an oral hearing may be required, where the issues impact significantly on the constitutional rights of the parties.

Under most schemes, the complaint is made informally.  There is generally a time limit.  The body concerned investigates the matter.  It may interview parties, obtain documents and seek further information regarding the complaint.  It may interview the complainant and other relevant parties.

Process II

In other cases, different procedures may be appropriate.  There may be individual private meetings and investigation. Where adverse conclusions are likely to be reached in relation to an individual, person constitutional justice will generally require that he must be given prior notice of the allegations and the opportunity to meet and rebut them.

In some cases, the process will be purely documentary.  In more complex cases, there may be formal submissions and a hearing.  A hearing may be required by principles of constitutional justice in some cases.

The basis on which ombudsman operates may be wider than on a purely legal basis.  Poor service, delay, acting unfairly etc. may constitute grounds on which a complaint may be upheld. The ultimate decision will be to uphold the complaint or dismiss the complaint.  Depending on the terms of the particular scheme, there may be powers to award compensation or other redress.