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Unlocking: Rethinking approaches to determining suitability of conflicts for conciliation abstract Coulson Barr

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Presentation from the 2012 National Mediation Conference Australia

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Unlocking: Rethinking approaches to determining suitability of conflicts for conciliation abstract Coulson Barr

  1. 1. 1 Unlocking the door: Rethinking approaches to determining the suitability of disputes for conciliation Lynne Coulson Barr Deputy Commissioner/Doctoral Candidate Monash University (SJD)* Disability Services Commissioner 30/570 Bourke St Melbourne Victoria 3000 Lynne.Coulson Barr@odsc.vic.gov.au * The author is completing a Doctorate of Juridical Science with the Faculty of Law, Monash University, and wishes to acknowledge her supervisor Associate Professor Bronwyn Naylor and the contributions of the Commissioners and officers who agreed to participate in this research. Abstract: Legislation across a wide range of jurisdictions require statutory bodies to make decisions about the suitability of complaints or disputes for conciliation. This paper deals with the question as to how such decision making can ensure fair and effective access to conciliation as a means of resolving disputes. This paper draws on the experience of the Disability Services Commissioner and outlines key findings from research with sixteen other statutory complaints bodies. Building on the findings of this research, the paper puts forward a new way of thinking about suitability to propose an ‘enabling model’ of decision making which starts with the question: How could we make this dispute suitable for conciliation? Keywords: Conciliation, Criteria, Suitability, Decision-making, Disability, Capacity, Resolution Introduction Legislation across a wide range of jurisdictions require statutory bodies to make decisions about the suitability of complaints or disputes for conciliation. Conciliation has a long history in Australia as a form of Alternative (or Appropriate) Dispute Resolution (ADR). It is associated with diverse applications and a wide range of processes including those similar to mediation. 1 Over the past few decades, legislation has been enacted in a range of jurisdictions to provide for complaints or disputes to be referred to conciliation, reflecting an increasing emphasis and attention being given to ADR as a way of resolving disputes in our society. 2 An example of such legislation is the Victorian Disability Act 2006 which established the Disability Services Commissioner with powers to receive and resolve complaints about disability services. This legislation provides for the Commissioner to either attempt to informally resolve complaints, or to refer such matters to conciliation or investigation. 3 As is common in other statutes which provide for conciliation, the Victorian Disability Act 2006 does not prescribe a model of conciliation. The legislation however requires the Commissioner to determine if a complaint is suitable for conciliation and make all reasonable endeavours to conciliate the complaint. 4 As a new statutory body with jurisdiction for a disability sector that had little or no experience with conciliation as a means of resolving complaints, the Disability Services Commissioner was faced with the challenge of developing an appropriate model of conciliation at the same time as determining suitability of complaints for referral to this process. Some of the early challenges involved dealing with cases with long histories of entrenched conflicts, negative attitudes to the prospect of reaching agreements, and questions raised by providers about the suitability of matters for conciliation or the capacity of the person with the disability to directly participate in the process. The author’s experience in addressing these challenges prompted the research and development of approaches which are the focus of this paper. 1 See Michael King, Arie Frieberg, Becky Batagol, Ross Hyams Non-Adversarial Justice (The Federation Press, Annandale, N.S.W., 2009) pp106-7 and David Spencer and Samantha Hardy, Dispute resolution in Australia : cases, commentary and materials (2nd ed, Thomson Reuters, Pyrmont, N.S.W., 2009) Ch 4 for an outline of the history of conciliation in Australia and its diversity of applications. 2 Ibid; Examples of more recent legislative schemes which provide for referral of complaints to conciliation include the Human Rights Commission Act 2005 (ACT) and the Disability Act 2006 (Vic). 3 See Division 6 of the Disability Act 2006 (Vic). 4 Ibid s116.
  2. 2. 2 In facing these challenges, the Disability Services Commissioner looked to the experience of other statutory bodies and relevant research and found that there has been little attention or dedicated research to this issue in Australia. 5 Legislative provisions for statutory conciliation commonly refer to a determination as to whether a matter is ‘suitable’ for conciliation or ‘the likelihood of success’, but not provide any criteria for determining suitability nor define the approach or type of conciliation model to be used in the particular jurisdiction. 6 The absence of such criteria or articulated approaches to determining suitability of matters for conciliation means that statutory bodies and individual officers have developed various approaches without a common practice framework or ways of assessing the efficacy of such decision making. Such decisions however determine a person’s access to justice through this form of dispute resolution and therefore warrant an appropriate level of scrutiny and accountability. There is the risk that reliance on implicit criteria or individual judgments about suitability, may unduly limit a person’s access to conciliation, particularly for people with a disability, where questions may be raised about capacity to participate or make agreements in conciliation. The question of appropriate access to conciliation has particular significance when considering the obligations imposed by the United Nations Convention of the Rights of Persons with Disabilities. 7 Article 13 of this Convention, together with relevant human rights legislation, creates an imperative for bodies operating under Commonwealth or state legislation to ensure that people with disabilities have equal, fair and effective access to justice. 8 These concerns point to the need to identify ways in which decision making on the suitability of disputes for statutory conciliation can ensure appropriate access to these processes as a means of resolving disputes, particularly for people with a disability. This paper draws on the experience of the Disability Services Commissioner and outlines the preliminary findings from doctoral research conducted with sixteen other statutory complaints bodies on the efficacy of decision making about the suitability of matters for conciliation. Key considerations from the literature One of the key considerations from the literature and research on the suitability of disputes for ADR, is the lack of reliable, empirically validated criteria or predictors of success for ADR processes. As the National Alternative Dispute Resolution Advisory Council (NADRAC) put forward in its 2006 report on legislating for ADR: 3.5 In practice, it can be difficult to define the criteria on which to base referral decisions. Available research identifies very few consistent features about disputes and their participants that can be used to predict whether or not ADR will be successful. This makes it difficult then, outside of general principles, to determine specific criteria for referral to ADR. 9 NADRAC proposed that the aim should be to determine general principles on which to base referral decisions without hindering the discretion of the courts and other relevant bodies to make decisions about individual circumstances.’ 10 NADRAC’s position was informed by a comprehensive review by Professor Kathy Mack of empirical literature and research of criteria for determining suitability for referral to ADR. 11 This review identified three main categories of referral criteria, each of which were found to be problematic in offering guidance to decision making on suitability of a dispute for ADR. These criteria included descriptive criteria which identify features associated with the parties, the dispute or the context, qualities that appear either to make ADR success more likely or be barriers to success, and principles for deciding that ADR should not be used which Mack found were not based 5 See Kathy Mack, Court Referral To ADR: Criteria and Research (Australian Institute of Judicial Administration and the National Dispute Resolution Advisory Council, Melbourne, 2003); see also Tania Sourdin, Alternative dispute resolution, 4th ed Thomson Reuters, Pyrmont, 2012) Appendix G which lists ADR empirical research conducted in Australia between 1986 and 2011 6 Examples of such legislation include the Disability Act 2006(Vic), Human Rights Commission Act 2005 (ACT) , Health Services (Conciliation and Review) Act 1987(Vic), Health Records Act (HRA) 2001 (Vic), Equal Opportunity Act 1995 (Vic). 7 United Nations Convention on the Rights of Persons with Disabilities, opened for signature 30 March 2007, 993 UNT 3 (entered into force 3 May 2008) Australia is a signatory and ratified this Convention in 2008. 8 Ibid; Article 13 states that State Parties shall ensure effective access to justice for persons with disabilities on an equal basis with others; The Charter of Human Rights and Responsibilities 2006 (Vic) is an example of state legislation which sets out Recognition and equality before the law as a human right (Part 2 s8). 9 National Alternative Dispute Resolution Advisory Council NADRAC, Legislating for alternative dispute resolution A guide for government policymakers and legal drafters (Barton, ACT, 2006) p 8 10 Ibid p 9 11 Kathy Mack, n5 above.
  3. 3. 3 on any evidence from empirical research about the effectiveness of ADR. Mack’s review of each of these criteria highlighted the challenges in drawing reliable or general conclusions on the effectiveness of ADR: A number of factors are regularly listed in the ADR literature which are thought to relate to appropriate ADR referral. However it appears that there is relatively little research directly addressing the validity of many of the widely identified “criteria” for referral, and where there is research, it tends to be inconclusive or contradictory. 12 A history of an adversarial relationship between parties was provided as an example of such a factor, as such a relationship may indicate entrenched positions which could present a barrier to resolving the dispute through ADR, but alternatively could mean that parties may be ready to try an alternative approach through ADR.13 These findings present particular challenges for statutory bodies where legislation requires the Commissioner or conciliator to make judgements as to whether the matter is likely to be resolved through conciliation. 14 This disconnect between legislative imperatives and ADR research findings is however not commonly identified by statutory bodies or officers charged with making decisions about the suitability of matters for conciliation 15 . In the absence of such awareness, these decisions are at risk of being based on assumptions about the empirical validity of certain criteria or anecdotal ‘evidence’ of factors associated with success or failure of conciliation. Similarly there is the need to identify the extent to which decisions are based on the types of general principles proposed by NADRAC, and whether these principles are sufficiently articulated to provide transparency and accountability for decisions where matters are determined to be unsuitable for conciliation. These questions are also relevant for the application of the practice standards developed for the National Mediator Accreditation Standards which require mediators and conciliators operating under these standards to determine whether the process is appropriate, and consider ‘power imbalance, safety, control and/or intimidation issues’ 16 . These standards identify that ‘Mediation processes may not be appropriate for all disputants or all types of disputes’ but do not provide guidance on the determination of these factors, nor identify other considerations that may be relevant for such decision making. 17 A review of the literature also reveals that there has been limited analysis of the principles or criteria that may inform such decision making in respect of the participation of people with disabilities in ADR, in ADR research and literature, particularly in Australia. 18 The capacity of the parties to participate in a process and power imbalances are likely to be factors that are taken into account in the determination of the suitability of matters for conciliation, and are particularly relevant for people with cognitive impairments or mental health issues. The work of the Disability Services Commissioner has focused on how such decisions can effectively address these issues and facilitate the participation of people with cognitive impairments, communication and decision making support needs. These key considerations from the literature and the experiences of the Disability Services Commissioner, informed the following research on approaches to decision making on the suitability of disputes for statutory conciliation. 12 Ibid, p 55 13 Ibid 14 See for example Equal Opportunity Act (WA) 1998, s91(1) which provides for the referral of matters to conciliation if the Commissioner ‘is of the opinion’ that the complaint ‘may be resolved by conciliation’. 15 This conclusion is based on the literature review and the findings of the author’s doctoral research. 16 National Mediator Accreditation Standards Practice Standards March 2012 p4- 6. 17 Ibid p2. 18 See bibliography in Kathy Mack (2003) above n5; Tania Sourdin (2012) above n5 for outline of ADR research between 1986- 2011 in Appendix G.
  4. 4. 4 Outline of Research A key theme arising from the literature on conciliation in Australia is that there is considerable variety in the approaches and models used and there is little consensus amongst conciliation providers as to what precisely conciliation means and the extent to which it differs from mediation. 19 Recognising this diversity of applications, the scope of this research was defined in terms of the types of disputes that were likely to involve people with disability. The research was conducted with sixteen Australian statutory bodies with the jurisdiction to conciliate complaints about:  health services  disability services  discrimination, equal opportunity, and issues of human rights. 20 The research sought to identify the key factors and processes that are currently being used to determine suitability for conciliation in these jurisdictions, and to identify the explicit and implicit criteria that are being used. The research examined how these decision making processes take into account factors such as nature of dispute, conciliation models and legislative requirements, and the extent to which current approaches address the rights of people with a disability to access statutory conciliation. Relevant data and information was gained through a combination of questionnaires, interviews with Commissioners or their delegates, and review of documentation and legislation. These multi method approaches examined the existence of policies or criteria for referrals to conciliation, models of conciliation, processes of decision making, factors taken into account to determine suitability, the frequency of decisions on unsuitability and the most common reasons, and any changes in approaches over time. All 16 statutory bodies agreed to participate in this research by completion of a survey and participation in a follow up interview. The preliminary results reported in this paper are based on 15 returned surveys and 18 interviews conducted, including three follow up interviews to capture changes in both legislation and approaches. The level of participation and interest shown in this research can be seen as indicative of the challenges and complexity of decision making about the suitability of disputes for conciliation, and the fact that many statutory bodies and officers have been developing approaches without the benefit of a common practice framework or articulated principles to inform such decisions. The research uncovered a real interest in the development of a common knowledge base and practice framework to inform such decisions. A number of key themes have been identified in the preliminary analysis and findings of the research data. These will be further developed and explored by the author in the completion of the doctoral thesis. The aim of this paper is to share some of the key learnings and insights identified to date by this research, and to propose a new way of thinking about determining the suitability of disputes for conciliation. Preliminary Findings: Key themes 1. Diversity of legislative basis and approaches to conciliation One of key findings was the diverse applications of conciliation across jurisdictions, which raises an obvious challenge in developing a common knowledge base and approach to decision making on the suitability of matters for conciliation. Whilst this finding is perhaps not surprising in the context of the literature on conciliation in Australia, the nature and extent of the diversity in approaches to conciliation within the jurisdictions targeted for this research was notable. As one respondent to the research put forward ‘It’s like comparing apples with pears’, pointing to the differences in the assessment decisions and threshold questions which bodies may be required to address prior to a decision about referral of a matter to conciliation. In some jurisdictions, the decision to refer a matter to conciliation can be essentially equivalent to a decision to accept a complaint as being within jurisdiction of the office, without any assessment of 19 Spencer, D & Hardy S (2009) above n1 4.3, p111; Hilary Astor and C. M. Chinkin, Dispute resolution in Australia (2nd ed, LexisNexis Butterworths, Sydney, 2002) 3.3 Conciliation pp85-88 20 See Appendix 2 for the legislation governing the operation of these statutory bodies.
  5. 5. 5 merit or substance. Whilst such applications are more common for statutory bodies dealing with anti- discrimination complaints, this is not uniformly the case as legislation for some of these bodies require an investigation or finding on the substance of a complaint prior to referral to conciliation. 21 The diversity of these applications means that the tasks and decisions that some statutory bodies would undertake in an ‘assessment stage’ of a complaint, may essentially be undertaken ‘within conciliation’ by those statutory bodies where referral criteria is limited to the question of jurisdiction. These assessment tasks and decisions can include clarifying the substance of the complaint, exploring options for resolution and determining whether the complaint meets the statutory body’s ‘threshold’ to warrant action or use of resources required to try to resolve the matter. Decisions to dismiss a complaint in conciliation in one jurisdiction can be essentially based on the same considerations not to accept a complaint in another jurisdiction where more detailed assessment decisions are required. As one respondent put forward, all accepted complaints are considered suitable for conciliation, but a decision to dismiss may be made after referral ‘where there is a very ‘weak’ complaint’. Alternatively assessments on the merits or substance of complaints can also occur as part of the decision-making on the suitability of referral of a matter to conciliation, which again makes it difficult to draw comparisons between jurisdictions. Amidst this diversity of applications of conciliation, the research however also identified a clear trend towards the adoption of models of ‘early conciliation’ and a ‘presumptive’ approach to determining suitability. Whilst this trend was most prevalent in those jurisdictions where the time frame for assessment of complaints is short, an increased focus on early resolution of disputes was the most commonly reported change in approach across all jurisdictions. These changes were attributed to organizational imperatives to increase timeliness and effectiveness of complaint handling, along with concerns about the potentially negative impact of written responses and time taken in assessments or investigations prior a referral to conciliation. Approaches to early conciliation included convening a conference between the parties within a short time after receipt of a complaint without requiring written responses and exchange of documentation prior to the conference. These changes also indicate an increasing influence of a dispute resolution and non-adversarial paradigms in approaches adopted by respondent statutory bodies, in contrast to what one respondent described as procedural approaches to complaint handling: We really have to stop this paper warfare as it is not conducive to resolution. It is entrenching positions and not using the skills that we have. 22 The influence of dispute resolution and non-adversarial paradigms was not however consistently reflected in the referral criteria identified by the various statutory bodies in this research, as will be discussed below. 2. Criteria and approaches to decision making on suitability The responses to questions about criteria and approaches used to determine the suitability of matters for conciliation tended to reflect the most common criteria identified in Mack’s review, namely criteria that is primarily descriptive or referred to qualities that were considered to make either success more likely or be a barrier to success. 23 Only three statutory bodies had developed a policy or criteria for decision making on suitability, but all advised of the need to revise their stated criteria, with one specifically abandoning the reference to criteria, referring to the need for the use of ‘sophisticated’ judgement in each case. With this one exception, all respondent statutory bodies identified both explicit and implicit criteria used to inform their decision making on the suitability of matters for conciliation. Criteria identified in both surveys and interviews tended to be expressed in general terms such as ‘negative attitudes of parties’, parties unwilling to participate’, ‘parties not acting in good faith’, ‘power imbalances’ or ‘public interest or safety issue’. Other factors explored in interviews included the length of the dispute, unrealistic expectations of complainants, particularly in respect of financial settlement or disciplinary actions, and threshold questions about substance or merits of the complaint. Whilst the majority of criteria were expressed as ‘negative criteria’ that would indicate unsuitability for 21 See for example Anti-Discrimination Act 1992 (Northern Territory), Anti-Discrimination Act 1998 (Tasmania) 22 Interview response by respondent. 23 See Mack, K above n5 p55.
  6. 6. 6 conciliation, some criteria were expressed in positive terms or required attributes for conciliation, such as parties being able to ‘demonstrate an open mind’, ‘demonstrate good will in communication’, or be ‘willing to resolve the dispute’. With the exception of public interest or safety considerations, criteria were generally linked to assessments as to whether the dispute could be resolved through conciliation. This is not surprising given the common legislative requirement to consider the likelihood of success or resolution through conciliation. There was however little awareness of the lack of reliability or empirical validity of the various criteria identified, and therefore a common reliance of anecdotal ‘evidence’ or views formed from individual experiences. The majority of respondents however reported that decisions on the unsuitability of matters for conciliation were ‘not often’ or ‘rarely’ made, which is consistent with the reported shifts to a presumptive approach to suitability. This approach was most clearly articulated by experienced conciliators, who drew on experiences of not being able to predict outcomes of conciliation and of witnessing the potential benefits for parties: ‘You can see how powerful the process can be. Our conciliators come out of each conciliation [and often say] “learnt something from that I didn’t know before”. We cannot presume anything as each case is different’. 24 Those statutory bodies that had not adopted a presumptive approach were more likely to focus on positive criteria or attributes of parties such as a willingness to listen to the other party or openness to resolution as criteria for suitability for conciliation. The existence of negative attitudes and resistance by parties to the idea of conciliation were however identified as key challenges by most respondents, including those statutory bodies with presumptive approaches to suitability. As one respondent expressed: ‘The difficulty we have is that conciliation is a new concept for providers and we are getting resistance.’ 25 Respondents pointed to the common need to explain and educate parties about conciliation, and the challenges in addressing adversarial or entrenched attitudes of both complainants and respondents. This was identified as a particular challenge for those statutory bodies without legislative powers to compel attendance at conciliation, where unwillingness to participate and negative attitudes of the parties were the most common reasons why a matter would not be referred to conciliation. As one respondent put forward: ‘Referrals to conciliation can be relatively meaningless when you’ve got a provider who doesn’t want to meet, provide any information or provide a response’ 26 . This presents a largely unrecognised and unique issue for decision making on the suitability of matters for conciliation by statutory bodies. Whilst criteria is most often described in terms or the characteristics of the parties or the dispute, the determination of suitability is also implicitly dependent on the capacity and resources of the organisation to educate and work with the parties on the potential benefits of conciliation. Given the diversity of applications of conciliation, there may also be the need to correct parties’ misconceptions about what conciliation involves in particular jurisdictions. Decisions may also be directly influenced by individual officers’ skills or preparedness to work with levels of high conflict, emotion and entrenched positions. At an organisational level, decisions may also be directly related to the resources available to devote to pre-conciliation meetings to prepare parties for conciliation or assisting them to make an informed decision to participate. Many respondents referred to co-conciliation as a another way of increasing their capacity to deal with complex matters, particularly those involving multi parties, high conflict and issues of power imbalances or capacity. The majority of respondents however identified that co-conciliation was not often used due to resource constraints. Decision making on suitability can thus be dependent on the capacity, skills and resources within an organisation, as well as the model of conciliation adopted. 24 Interview response by respondent. 25 Interview response by respondent. 26 Interview response by respondent.
  7. 7. 7 The links between conciliation model and criteria for decision making was also seen in relation to the variable approaches adopted by organisations to define and exclude issues on the basis of the complaint raising issues of ‘public interest’ or safety. Some statutes specifically require exclusion of ‘public interest’ issues from conciliation, but do not provide a definition or guidance for assessment of such issues. 27 The research identified a range of approaches to this issue, which were affected by options available in the legislation to ‘split complaints’ and conciliate individual outcomes, along with other options available to address issues of ‘public interest’ such as investigations or prosecutions. 28 Approaches also varied with the extent to which organisations had articulated their model of conciliation to include an advisory role, with identification of systemic or policy changes as possible conciliation outcomes 29 . Whilst some organisations identified policy or systemic issues as being potential reasons to refer a complaint to investigation rather than conciliation, other organisations, particularly those with limited resources to undertake investigations, identified the potential to achieve systemic improvement as one of the reasons a matter may be referred to conciliation, even when a complainant may be reluctant: ‘In some cases complainants are encouraged to participate in conciliation in order to be able to highlight areas of systems improvement for the provider. This is a cultural approach to systems improvement, as well as an effective way of utilising limited resources.’ 30 Approaches to referrals to conciliation, were also affected by the availability of other approaches to resolution such as ‘assisted resolution’ or ‘negotiated settlements,’ 31 and the extent to which conciliation was part of a continuum or suite of responses for resolution of disputes. 3. Access and capacity issues Respondents were asked how factors such as such as capacity to participate or power imbalances between parties were taken into account in decision making on the suitability of disputes for conciliation. All respondents put forward these factors were carefully considered in the type of approach adopted for the conciliation, with the most common responses being to involve advocates, support people or guardians in the processes and to use shuttle conciliation processes rather than face to face conferences. A minority of responses referred to power imbalances or capacity issues as potential reasons not to refer a matter to conciliation, particularly where an advocate was not available. Statutory bodies dealing with anti-discrimination complaints were more likely to identify decisions on suitability to be discriminatory for a person with a disability if they were based on judgments on capacity to participate. Whilst most decisions on suitability were unlikely to be made on the basis of a person’s capacity to participate, the common reliance on advocates or support people meant that the question of ensuring effective access to a person with a disability to directly participate in conciliation was not often explicitly addressed. Despite this reliance on advocates, most organizations put forward concerns about the variability of advocates to adequately represent their clients and the negative impact of adversarial approaches adopted by some advocates. In a similar way to the criteria relating to willingness of parties to participate in conciliation, organisations’ approaches to this criterion tended to focus on the person’s capacity to participate, and not identify the interdependency of the capacity, resources and skills of the organization, or individual officer, to facilitate this participation. Concepts such as capacity being a continuum and supported 27 See for example Health and Community Services Complaints Act 2004 (South Australia) s36 28 The Health Care Complaints Act 1993 (New South Wales) for example provides at s80 for the prosecution of certain complaints by the Commission before appropriate bodies including registration bodies and tribunals. 29 For discussion of such approaches to conciliation see Jodie Ball & Tracey Raymond, ‘Facilitator or Advisor?: A discussion of conciliator intervention in the resolution of disputes under Australian human rights and anti-discrimination law’ <http://www.humanrights.gov.au/complaints_information/publications/facilitator_advisor.htm - 59k - [ html ]>; and Tracey Raymond (2008) Alternative Dispute Resolution as a tool for social change: a discussion of issues and evidence <http://www.humanrights.gov.au/word/complaints/ADR_social_change2008.doc - 170k - [ doc ]> accessed 1 August 2012 30 Interview response by respondent. 31 See Division 3A ‘Negotiated settlements’ of Health and Disability Services (Complaints) Act 1995 (Western Australia) and Division 9 ‘Complaints Resolution’ of Health Care Complaints Act 1993 (New South Wales) which provides for what the Commission calls ‘assisted resolution’ at s58B(b) to facilitate the resolution of complaints, including determining the most appropriate means of resolution having regard to the nature of the complaint and the expectations of the parties to the complaint.
  8. 8. 8 decision making for people with a disability were not often identified as being considerations in the approaches adopted. Most organizations however expressed a desire to increase the accessibility of their processes for people with a disability, noting the limited occasions where people with cognitive impairments access complaint processes or directly participate in conciliation processes. This interest indicates the benefits of introducing new ways of thinking of people’s capacity to participate in conciliation, such as the approaches articulated by practitioners working in disability mediation in the United States who propose a framework for ‘facilitating competencies in lieu of determining capacity’. These authors contend that an individual’s capacity to participate in mediation is interactive and therefore dependent on the mediator whose role should be to facilitate competencies for every individual to participate, regardless of personal characteristics. 32 The approaches developed by the Disability Services Commissioner reflect this shift in focus from determining capacity to promoting people’s ability to participate through the design of complaint resolution processes and the use of resources such as visual aides and communication tools. 33 Rethinking approaches to determining the suitability of disputes for conciliation The above themes identified in responses to this research highlight significant shifts and approaches to decision making about the suitability of disputes for conciliation. These themes point to the efficacy of rethinking approaches to the question of suitability in a way that was crystallised by one respondent: ‘Rather than deciding whether a matter is suitable for conciliation, we look at what approaches may be needed to make it suitable.’ 34 Such approaches were described as requiring sophisticated judgements in each individual case, taking into account a range of factors including the support needs of participants, skills and experience of conciliators, and safeguarding options such as arrangements for parties to seek independent advice prior to finalisation of agreements. The types of principles informing such approaches included ‘informed participation and decision making by the parties to the dispute’, addressing potential barriers to such participation and ‘doing no harm’. Other approaches included the development of ‘dispute resolution plans’ to address identified barriers to resolution including entrenched attitudes and levels of hostility. Changing the question to ‘How could we make this dispute suitable for conciliation?’ is consistent with approaches to the issue of capacity discussed above, which shift the focus from assessing a person’s capacity to participate, to a focus on the capacity of the officer or organisation to facilitate their participation or ‘competencies’. The Disability Services Commissioner has focused on developing a range of flexible approaches to resolution, with consideration given to the types of approaches and resources that may be necessary to make disputes ‘suitable for resolution’, with conciliation being one a continuum of approaches to resolution. Examples of approaches and resources include the use of conflict coaching, assessment conferences, pre-conciliation conferences, use of communication and visual aides or technology such as Skype, involvement of support people and the matching of officers with the particular needs of parties and disputes. Some respondents identified the issue that the legislative provisions on conciliation were drafted prior to rise of ADR and the establishment of NADRAC’s role in defining ADR processes and principles for legislating for ADR. In adopting a presumptive approach to suitability of matters and ‘early conciliation’ models, some respondents spoke of interpreting ‘out dated’ legislative requirements within a contemporary ADR framework such as interpreting ‘may be resolved’ though conciliation to ‘may have potential benefits’ to the parties. Other respondents described interpreting the requirements for assessing complaints as limited to jurisdictional issues, so as to enable an ‘early conciliation’ approach to bringing the parties together. The Disability Services Commissioner has interpreted the legislative provisions for assessment of complaints to emphasise the provision that the Commissioner ‘may 32 Susan Crawford, Lewis Dabney, Judith Filner, Peter Maida ‘From Determining Capacity to Facilitating Competencies: A New Mediation Framework’ (2003) Conflict Resolution Quarterly Vol 20, No 4 Summer 2003 Wiley Periodicals, Inc. 3 33 See L. Coulson Barr (2010) Finding the right key: unlocking approaches to making decisions about suitability of disputes for conciliation. A focus on access for people with a disability. National Mediation Conference 2010. Unpublished paper; Disability Services Commissioner publications and resources at <http://www.odsc.vic.gov.au/publications.htm> 34 Interview response by respondent.
  9. 9. 9 attempt to resolve the complaint informally’ 35 to develop a continuum of approaches which focus on the earliest possible resolution of a complaint. Adopting a new way of thinking about the suitability of disputes for conciliation requires statutory bodies to find ways of reconciling legislative imperatives to make judgments as to whether a matter is suitable or ‘may be resolved’ through conciliation. Building on the preliminary findings of this research and the experiences of Disability Services Commissioner, the development of an ‘enabling’ model of decision making is proposed. Towards an ‘enabling’ model of decision making The preliminary findings from this research highlight the complexity and challenges in developing a common practice framework for decision making on the suitability of matters for conciliation. Given both the diversity of applications of conciliation and the lack of reliable criteria for predicting success, the development of an ‘enabling’ model of decision making is proposed as a way of ensuring fair and effective access to conciliation as a means of resolving disputes. Such a model would build on the presumptive approaches to suitability, by paying attention to the organisation’s or officer’s role in facilitating people’s capacity and preparedness to engage in dispute resolution. On the basis of preliminary findings of this research, the following key features are identified as necessary to develop an enabling model of decision making on suitability of disputes for conciliation:  Articulation of the objectives of the organisation’s approach to conciliation and its relationship with other processes;  Adoption of a presumptive model of suitability and a dispute resolution framework;  Articulation of the principles, knowledge and theoretical base on which decisions are made;  Identification of explicit thresholds for dealing with matters and decision making points;  Recognition of the interdependency of parties’ capacity and willingness to participate in conciliation, and the skills, capacity and resources of the organisation;  Identification of potential barriers to participation and resolution, including officer skills and organisational resources, and options for reducing them;  Use of educative and advisory processes within conciliation; and  A focus on facilitating participation and ‘competencies’ of all parties to engage in the resolution process and to derive potential benefits. This model will be developed through further analysis of the research findings and considerations of ways of ensure fair and effective access to conciliation as a means of resolving disputes, particularly for people with a disability. ________________________________________________________________________________ Appendix: Legislation Australian Human Rights Commission Act 1986 Anti-Discrimination Act 1977 (NSW) Anti-Discrimination Act 1992 (NT) Anti-Discrimination Act 1991 (Qld) Anti-Discrimination Act 1998 (Tas) Charter of Human Rights and Responsibilities Act 2006 (Vic) Disability Act 2006 (Vic) Equal Opportunity Act 1984 (WA) Equal Opportunity Act 1984 (SA) Equal Opportunity Act 1995 (Vic) Equal Opportunity Act 2010 (Vic) Health and Community Services Complaints Act 1998 (NT) Health and Community Services Complaints Act 2004 (SA) Health Care Complaints Act 1993 (NSW) Health Complaints Act 1995 (Tas) Health and Disability Services (Complaints) Act 1995 (WA) Health Quality and Complaints Commission Act 2006 (Qld) Health Records Act (HRA) 2001 (Vic) Health Services (Conciliation and Review) Act 1987(Vic) Human Rights Commission Act 2005 (ACT) 35 Disability Act 2006 (Vic).s113(3)

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