1 / 13

Facilitative or Advisory ADR: A discussion of conciliator intervention in the resolution of disputes under Australian h

Overview. 1. ADR in the context of anti- discrimination and human rights law2. Resolving human rights and anti- discrimination complaints - a hybrid ADR process?The parameters of the conciliator's advisory role4. The HREOC conciliator . ADR in the context of anti- discrimination and human rights law .

coy
Download Presentation

Facilitative or Advisory ADR: A discussion of conciliator intervention in the resolution of disputes under Australian h

An Image/Link below is provided (as is) to download presentation Download Policy: Content on the Website is provided to you AS IS for your information and personal use and may not be sold / licensed / shared on other websites without getting consent from its author. Content is provided to you AS IS for your information and personal use only. Download presentation by click this link. While downloading, if for some reason you are not able to download a presentation, the publisher may have deleted the file from their server. During download, if you can't get a presentation, the file might be deleted by the publisher.

E N D

Presentation Transcript

    1. Facilitative or Advisory ADR?: A discussion of conciliator intervention in the resolution of disputes under Australian human rights and anti-discrimination law Jodie Ball & Tracey Raymond

    2. Overview 1. ADR in the context of anti- discrimination and human rights law 2. Resolving human rights and anti- discrimination complaints - a hybrid ADR process? The parameters of the conciliator’s advisory role 4. The HREOC conciliator

    3. ADR in the context of anti- discrimination and human rights law

    4. Statutory conciliation “..a process in which the parties to a dispute..under statute…with the assistance of a neutral third party identify disputed issues develop options, consider alternatives and endeavour to reach an agreement. The conciliator has no determinative role on the content of the dispute or the outcomes….., but may advise on or determine the process..and may make suggestions for terms of settlement, give expert advice on likely settlement terms.. and may actively encourage..an agreement which accords with the requirements of that statute”

    5. Classification of ADR processes Facilitative The ADR practitioner “ ……..has no advisory or determinative role on the content of the dispute or the outcome of its resolution, but may advise on or determine the process whereby resolution is attempted.”

    6. Classification of ADR processes Advisory The ADR practitioner “ ……..investigates the dispute and provides advice as to the facts of the dispute, and, in some cases, advice regarding possible, probable and desirable outcomes and the means whereby these may be achieved.”

    7. Classification of ADR processes Determinative Involves the ADR practitioner “ ……..investigating the dispute (which may include the hearing of formal evidence from the parties) and making a determination, which is potentially enforceable, as to its resolution.”

    8. Resolving human rights and anti-discrimination complaints – a hybrid ADR process?

    9. Elements supporting advisory nature of conciliation process Investigation prior to conciliation Joint investigation/conciliation role Conciliator perceived as expert on law and resolution terms Conciliation in the ‘shadow of the law’ Conciliator charged with upholding legislation/legislative objectives Legal advocacy role of some agencies - post conciliation

    10. Variables that influence approaches to conciliation Agency role Agency process Characteristics of the complaint Needs and wishes of the parties

    11. The parameters of the conciliator’s advisory role

    12. Rationale for conciliator intervention in resolution outcomes Role to administer legislation includes furthering its broader objectives for social change Role to ensure just and fair outcomes with reference to legal rights

    13. Limitations on the advisory role of the conciliator Legal principles of ‘natural justice’ and ‘procedural fairness’ Legitimising principles of ‘consensuality’ and ‘neutrality’

    14. The HREOC conciliator…… has a legitimate role to: 1. To ensure just and fair process 2. To provide parties with information on: reasons for proceeding to conciliation possible settlement options ( which may include consideration of outcomes of factually similar cases) 3. To ensure settlement outcomes do not contravene the objects of the legislation

More Related