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