Before conciliation

Arrive or log-on early

Parties should arrive at the designated location 15-minutes before conciliation is due to commence.  This will give you time to find out where to sit and ask for help if needed.

If you are attending the conciliation by AVL, log on to the link provided at least 10-minutes before the conciliation is due to commence.  This will give you time to contact the Commission if there are technical issues. 

Attendance

A Commission Support Officer will attend or join you online about 5 minutes before the conciliation conference commences to confirm the names and roles of the people present at conciliation.

Contact the Commission if you will be late

You must contact the Commission before the start time if you will be late.  If you are not in attendance when it starts without prior notice then: 

• the case may proceed without you;
• your application could be dismissed; or
• the matter could also be decided in favour of the other party if you do not attend.

 During conciliation 

Conciliation begins

A member of the Commission will commence the proceedings. The Commission Member will briefly explain the purpose of conciliation, their role in the process, what will happen on the day, and set out the rules that both parties must follow. You can ask questions at any stage if you do not understand.  The Commission’s usual practice is to commence ‘on the record’, which means that the initial stage of the conciliation is recorded and occurs in open court, like a hearing, where any member of the public can attend.

Questions for the parties 

The Commission Member will ask each party to give:

• an overview of their case; and
• the desired solution.

The Commission Member will help the parties identify key issues and ask questions of the people present for clarification if more information is needed.  It is normal to be anxious at conciliation but please behave appropriately .  Always be polite, patient, listen to the person speaking and do not interrupt the other party.  The Commission Member will ensure everyone has a chance to speak.

The Commission Member will usually move into a private conference after the parties’ initial positions are stated.  When the Commission Member moves into private conference, the recording is paused. 

Private Conference

‘Off the record’ discussions can take place with both sides present in the hearing room, or the parties can be directed into separate meeting rooms, where the Commission Member will move between the parties.  Off the record discussions are conducted in private with members of the public excluded.  If the parties are directed to separate meeting rooms, disclosures to the Commission Member in each separate room will not be discussed with the other party unless the Commission member is given permission.

You should assume everything said in a conciliation conference is ‘on the record’ until the point that the parties have moved into private conference to explore settlement options.

Even then it is sensible to make clear before disclosing information that it is ‘off the record’ or ‘without prejudice’, which means the information generally cannot be used if the matter proceeds to a hearing, subject to limited exceptions (eg to enforce any agreement reached by the parties, or to determine liability for costs).

‘Off the record’ discussions in private conference are used to encourage open and honest communication during the conciliation process because parties know their words generally cannot be used against them later or to damage their case, subject to limited exceptions.

Confidentiality

The ‘off the record’ communications are private and confidential.  The content of those discussions cannot be disclosed to anyone outside of the proceedings without permission from the other party and the Commission.

Can a settlement be reached? 

The Commission Member may provide their views on the parties’ positions and ask the parties’ questions aimed at ensuring the parties have considered the benefits and risks of an offer.  The outcome agreed upon at the conciliation can be recorded in the transcript and later documented in a written agreement, which will end the matter.