The role and usage of conciliation and mediation in dispute resolution in the Australian Industrial Relations Commission.

Abstract

The Workplace Relations Act 1996 severely curtailed the traditionally strong arbitral powers of the Australian Industrial Relations Commission; rather, a key thrust of the legislation was the make unions and employers primarily responsible for resolving industrial disputes. Despite this legislative change, the two main parties continue to seek the assistance of the AIRC in resolving industrial disputes. This paper investigates the processes and practices used by the AIRC in managing these dispute notifications, particularly the relative roles of conciliation and mediation. It argues that, overall, the AIRC continues to play a significant interventionist role and that this level of intervention is strongly supported by practitioners; indeed, many employers support a more interventionist role. The actual forms of intervention utilised vary but practitioners are not concerned about the process; focusing, rather, on the outcome, a resolution of the dispute.

Introduction

In 1904, the Parliament of the new Commonwealth of Australia enacted the Conciliation and Arbitration Act. While the intention of the legislators of this Act has been debated (see, for example, McCallum and Smith 1986) there is little doubt that, over time, the arbitral powers were much more utilised by the Commonwealth Court of Conciliation and Arbitration, the regulatory agency established by the Act. The role of conciliation has, on occasion, been important, and indeed, at various times, separate conciliation divisions were established within the Court and appointments made to positions of Conciliators. Conciliation, however, throughout most of the 20th century, largely took place in the shadow of arbitration. Commencing in the late 1980s, this traditional dominance of arbitration started to fade. Ultimately, the Workplace Relations Act (WRA) 1996 heavily restricted the arbitral powers of the Australian Industrial Relations Commission (AIRC). This legislation has among its objectives 'ensuring that the primary responsibility for determining matters affecting the relationship between employers and employees rests with the employer and employees at the workplace or enterprise level' (section 3(a)) and 'enabling the Commission to prevent and settle industrial disputes as far as possible by conciliation and, where appropriate and within specified limits, by arbitration' (section 3 (h)). With the exception of 20 specified matters, all other issues are to be resolved between the two main parties by negotiations. A further challenge to the traditional arbitral dominance occurred through a Ministerial Discussion Paper and the subsequent introduction of the Workplace Relations Legislation Amendment (More Jobs, Better Pay) Bill into parliament in 1999. This Bill proposed the 'voluntary use of mediation in industrial relations for use as an alternative or supplement' to the processes of the Commission, suggesting that the Howard government wished to pursue significant change in the traditional dispute resolution role of the Commission.

Despite very significant changes to the authority and jurisdiction of the AIRC from 1996 onwards, the two main industrial relations parties, unions and employers, continue to seek the assistance of the AIRC in resolving disputes. For example, Forbes-Mewett et al (2003) show that, when referrals of industrial disputes to the AIRC under all possible avenues are combined, the workload of the Commission in 2002 was approximately the same as for 1996, the year before the WRA came into effect. The questions then arise as to how the AIRC is managing these disputes, what are the roles and usage of non-arbitration forms of interaction, and how do users of the AIRC view and understand such forms of interaction? Drawing on a series of interviews, focus groups and a questionnaire survey, this paper analyses these users' perceptions of these non-arbitration forms of interaction. In particular, it explores their understanding of the processes of conciliation and arbitration, the extent and form of these two processes, and the future conciliation and mediation needs of users of the AIRC.

Literature

A key starting point is to explore the different meanings of the two main forms of non-arbitration processes of relevance to this paper, conciliation and mediation. There is a broad literature on these forms of interaction; unfortunately, it is also somewhat contradictory, particularly with regard to different degrees of intervention by regulatory agencies. This brief review highlights these differing meanings and interpretations, but draws together a definition that would appear to have some use in the Australian industrial relations context.

The International Labour Organisation (ILO) views mediation as the stronger form of third party intervention, in that it can include offering parties a proposal for a settlement. (ILO 1973, p. 3) It defines conciliation as less interventionist, more a process of encouraging parties to discuss their differences and to help them to develop their own proposed solutions (ILO 1973, p. 3). Kagel and Kelly (1989) argue that this view of mediation as being the more interventionist process is applicable to North America, but assert that conciliation is the more active and interventionist of the two forms of dispute resolution in Europe. They define US-style mediation in a solely interventionist sense with this third party being an active negotiator in the mediation process, making suggestions and advocating concrete settlement proposals. (Kagel and Kelly 1989, p. 186). This geographical specificity does not seem widely supported. For example, Folberg and Taylor (1984, p. 4) define mediation as 'a process which emphasises the participant's own responsibilities for making decisions that affect their lives. It is therefore a self-empowering process.' Further, Hoffman (1999) claims that two styles of mediation have been generally recognised in North America. One is a more relaxed, non-directive, therapeutic mediation, based on trusting the process to achieve the desired settlement. The other style is more interventionist, with mediators utilising a 'carrot and stick' approach, intervening in disputes in a directive manner. Kolb supports this dual definition, noting that mediators are either 'orchestrators', who maintain and guide the mediation process in a reflexive or non-directive way, or 'dealmakers', who are more active in bringing about settlements, generally acting in a directive or interventionist manner, including suggesting options for the parties (Kolb 1981, in Fells 1999, p. 598) Thus it seems that some North American authors recognise mediation as having different aspects or styles that encompass a range of third party, non-determinative dispute resolution strategies, with varying degrees of intervention in the content of the dispute.

When compared to the profusion of mediation-related literature, definitions for conciliation under a US model are scarce. Kagel and Kelly (1989, p. 186) offer one of the few definitions contending that conciliation in the US involves a neutral third party acting to improve communications between the parties, but making no concrete proposals for a settlement. Arguably, conciliation in the US has been subsumed as a facet of mediation, seemingly representing its more facilitative side. This would be reflected in Kolb's theories of 'orchestrator' mediators and Hoffman's therapeutic mediation model, thus explaining the two-fold definition of mediation that they offer.

In contrast, the Australian literature generally subscribes to mediation as being the less interventionist form. In 1998, the then Federal Minister for Employment, Workplace Relations and Small Business asserted that 'in its pure form, mediation is a process whereby an independent person is used to assist the parties in dispute to find a mutually acceptable solution to their differences' (Reith 1998, p. 1). Further, 'unlike a conciliator, the true mediator will guide the process of resolution, but not advise the parties on the matters in dispute, its resolution, likely settlement terms, or likelihood of success at the next stage (if any)'. According to Boulle, an authority on mediation in Australia, mediation is a voluntary system in which a neutral mediator controls the process but does not intervene in the content of a dispute, thus leading to consensual outcomes for the parties (Boulle 1996, p. 15). Similarly, Howells and Cathro (1983, p. 171) define mediation as a process where an impartial neutral party assists the disputants in settling their differences. The mediator facilitates voluntary agreements made by the parties, ensuring that the final decision is their own and not the mediator's. Fells (1999) agrees with this definition, claiming that under the traditional view of mediation the mediator merely facilitates: the parties themselves make the final decision, with the role of the mediator being to create and maintain a process by which this can occur. According to Fells, the essential features are the involvement of an independent person in an assisting role and that the parties still reach their own agreement without the interference of the mediator in the content of the dispute.

Some contrasting views have been argued. Boland, for instance, claims that mediation has the connotation of being a more structured, pro-active process. He contends that mediation involves an impartial third party facilitator who protects the integrity and confidentiality of proceedings, requiring good faith from participants, the presence of the representatives who have the authority to negotiate and an appropriate site or venue for the mediation process (Boland 1998). Macken and Gregory (1995, p 39) seem to agree with this, defining mediation as being 'the conducting of negotiations in the presence of and under the control of a neutral third party'. The mediator's role includes suggesting possible compromises, assisting the parties to identify the issues between them, options for resolution, and, if called upon to do so by the parties, providing and opinion as to the likely outcome of the dispute if it were to proceed to a formal hearing. Overall, however, it appears that the significant majority of Australian authors tend to define mediation as less interventionist that conciliation.

Turning to definitions of conciliation, Boulle defines this process as 'a form of assisted negotiation between two or more parties in which an additional person, the conciliator, intervenes in various ways with the object of facilitating a settlement between the parties' (1996, p. 67). He asserts that conciliation is more interventionist regarding the content of negotiations and possible options, and involves recommending various solutions and otherwise influencing the parties, thus affecting the outcome. This understanding is supported by Dewdney (2001, p. 157), who notes that conciliators 'often have powers to give directions or make recommendations to the disputing parties'.

Why has this differentiation in meaning arisen between Australian usage and North American/ILO usage? There are at least two possible reasons. First, the legal context in Australia is different. Boulle (1996) notes that conciliation in Australia is often provided by a public body and not by a private agency. In contrast, mediation is seen as a 'more alternative' form of dispute resolution. The Australian Law Reform Commission advances a similar view: conciliation is more interventionist and can be differentiated from mediation due to the statutory context in which conciliation is often used (ALRC 1998, section 3.28).

The second reason may simply be that the two processes, while theoretically distinguishable, have such significant overlap that, in practice, very similar processes have been labelled differently. Provis (1997), for example, contends there is only a theoretical distinction between conciliation and mediation, and since the two processes tend to blend into one another, he uses the terms interchangeably. Macken (1997) holds that there is no practical difference between mediation and conciliation unless the former is defined in a narrow, more facilitative sense. Fells also points out that in mediation, while the theoretical emphasis is on a facilitative approach, some case studies seem to suggest that a more interventionist approach is more typical in practice. He asserts that while the role of the mediator is to assist, in practice the mediator has a wide scope of options as to what to do to assist the parties, short of deciding what the settlement should actually be (Fells 1999). Similar overlaps are noted by (among others) Boulle (1996), Kagel and Kelly (1989) and Garwood (1999). Similarly, even the ILO (1973, p. 3) acknowledges that mediation and conciliation are essentially equivalent, and refer to similar kinds of third party intervention in order to promote the voluntary settlement of disputes, and that, in industrial relations terms at least, the distinction between the two seems to have disappeared.

In light of the above discussion, it appears that it is possible to make some theoretical distinction between conciliation and mediation, at least in an Australian industrial relations context. Mediation can be characterised as a process within which an independent, third party neutral assists the disputing parties to resolve their differences through the control of the resolution process, without interfering in the content of the dispute or making any suggestions, allowing the parties to craft their own settlement. This definition is consistent with the facilitative process described by Boulle (1996). Conciliation can be taken to involve a neutral and independent third party encouraging, advising and making recommendations with respect to the process and the content of the dispute (including the making of possible settlement proposals) in order to secure a final resolution to the disagreement. In short, conciliation can be distinguished from mediation as involving a more interventionist interference in the content of the dispute. It also entails the more institutionalised manner in which conciliation is used by the Australian Industrial Relations Commission as its primary method of dispute resolution.

In line with these definitions, this paper uses the concept of mediation in the facilitative sense; conciliation has a more interventionist connotation. This nomenclature appears to be in line with the majority of accepted definitions in Australia, and is useful for distinguishing between the varying degrees of interventionist approaches to third party non-determinative dispute resolution.

Past Empirical Studies 

There have been a number of past studies of the roles of mediation and conciliation in the resolution of disputes. Few, however, deal with their use in industrial relations. Fells (1999: 598) is correct in claiming that research into how labour mediators actually conduct the process of mediation is limited. Nevertheless, previous studies identify a number of principles that are still relevant today, even if the background against which they were made is now no longer appropriate. Below, a number of distinct strategies and styles of dispute resolution identified in previous research are discussed.

In his 1972 study, Kressel identified three strategies commonly used in dispute resolution. A reflexive strategy entailed laying the groundwork for an agreement to be formulated by relaxing the parties, gaining their trust and understanding the real issues in dispute. Second, non-directive strategies can also be employed, allowing the parties to reach a resolution between themselves through the use of communication-enhancing techniques. Finally, Kressel identified directive strategies as involving the active promotion of a settlement, by suggesting resolutions and compromises, or pressuring the parties into ending a dispute. According to Carnevale and Pegnetter, parties tend to favour reflexive and non-directive mediation over the more interventionist directive strategies (Carnevale and Pegnetter 1985). Fells (1999, p. 608) however, claims that evidence from various case studies shows that interventionist or directive approaches may be adopted if a resolution is not forthcoming.

Shapiro, Drieghe and Brett (1985, p. 101), in their study of mediator behaviour, identified four different dispute resolution strategies. These were 'deal making', using face to face conferences and suggestions on how arbitration would work out, 'shuttle diplomacy', involving separating the parties and running messages between them to develop a concrete settlement and pressuring the company to accede to the union's demands, and pressuring the union to withdraw their grievances. Regarding the selection of strategies, they theorised that mediators ask themselves 'What can be done with a case like this?' and then select a technique that in the past has resulted in the kind of outcome that is sought by the parties in the present case.

In their study of mediation in New Zealand, Howells and Cathro (1983, p. 173) argued that it was difficult to generalise on how mediation was conducted. The actual strategies used might depend on a number of factors, including the issue(s) in dispute, the relative power of each party, the importance of the company economically, the timing of the dispute, community attitudes, and the personalities of the disputants and the mediator. Following Kressel's work in 1972, Howells and Cathro suggested that a mediator will adopt reflexive strategies early on in the dispute, start to apply non-directive strategies later in the dispute to increase the chances of a settlement from the parties, and finally adopt directive strategies if a settlement is not forthcoming. Fells (1999, p. 607) concurs that mediators adopt different styles and strategies based on the nature of the dispute. Shapiro, Drieghe and Brett (1985, p. 102) also accept that mediators develop a personal style, but their research showed that there are no differences in success rates for settling disputes through the use of different styles of mediation, but that there are differences in the types of settlements that are achieved.

Overall, these studies point to a variety of dispute resolution strategies, broadly classifiable into three distinct categories. First, reflexive strategies cover bettering the relationship of the parties and gaining their confidence to increase the chances of resolving the dispute. Secondly, non-directive or non-interventionist strategies involve enhancing or facilitating the communication between the parties while controlling the process of the dispute. Finally, directive or interventionist strategies include bringing pressure to bear on the parties to resolve their dispute and offering opinions and suggestions on how the dispute could be resolved. It is suggested that, in line with our previous definitions of mediation and conciliation, mediation normally utilises reflexive and non-directive techniques and conciliation usually involves the use of directive techniques. Past research shows, however, that the distinctions between these two separate processes tend to blur as varying strategies, based on the nature of the dispute and what is appropriate in the circumstances, are used. It remains to be seen whether the theoretical distinction is carried over into the use of conciliation and mediation techniques in the Australian Industrial Relations Commission.

Research Method

The data presented in this paper derive from three main sources: a questionnaire survey, focus groups and interviews. In April 2002, a survey questionnaire was distributed to all individuals or organizations that had had an issue or matter, other than an unfair dismissal, notified to the AIRC during the three-month period October to December 2001 inclusive. In total, of the 1650 questionnaires distributed, 255 completed, useable questionnaires were returned and 280 were returned 'address unknown', giving a response rate of 19 per cent. This high rate of 'address unknowns' is linked to the decision of the Office of the Industrial Registrar to provide only the names of the individuals and organisations involved in the notifications and not their contact details. In some cases, particularly for larger organisations, such contact details were readily available elsewhere; in others, despite drawing upon a variety of publicly available sources, the contact details used were obviously incorrect. In this context the response rate of 19 per cent is acceptable. It does, however, raise the possibility of an element of non-response bias in that the views of individuals or of smaller organisations may not be adequately represented. Equally, we cannot discount the possibility that respondents are not representative of the 'normal' population of AIRC users; there simply is no data base against which we could check the attributes of the population from which the sample is drawn. The manufacturing sector was more highly represented than its proportion of employees in the workforce but, anecdotally, this is not unusual within the AIRC client base.

To assist in obtaining information that was more detailed and to facilitate further analysis of many of the matters arising from the survey, focus groups were conducted. In total, five focus groups, comprising union officials, employer association representatives, labour lawyers, company-level industrial relations and human resources practitioners and industrial relations consultants, were conducted during the period June-September 2002. An attempt was made to achieve a balance in the selection of focus group members; for example, representatives from all the major employer associations, trade unions and industry groupings were sought. Inevitably, however, some degree of imbalance occurred; for example, not all promised participation actually eventuated. One union representative noted that all participants were from Melbourne, and the New South Wales Branch of her union might hold different views. This concern was alleviated somewhat by the totality of the numbers participating in the groups and the level of agreement within the groups. In addition to these groups, individual interviews were conducted with eight experienced users of the Commission--union officials, employer association officials, legal practitioners and industrial relations consultants. The selection of these interviewees was based largely on the recommendations of members of the focus groups and was influenced by a combination of lengthy experience before the Commission and frequency of appearances at the Commission. Finally, interviews were also conducted with seven members of the AIRC.

All interviews and focus groups were conducted by at least two of the authors; the focus groups were conducted on neutral premises, while the individual interviews were overwhelmingly conducted in the interviewees' workplaces. All interactions lasted, on average, 1-1.5 hours. A standard set of questions was asked of each target group, but interviewees were also encouraged to offer additional relevant views. A process of checking and reconfirming key, core data towards the end of each interview was followed. Notes of the interviews/groups were written-up immediately after the interview.

Data and Findings

Our study focused on two areas within the Commission's purview under the Workplace Relations Act 1996. These were section 99 notifications of industrial disputes and section 127 applications to stop or prevent industrial action. This section reports the results of the interviews and focus groups and of the questionnaire findings with regard to differentiation between conciliation and mediation, the form and extent of these processes and their future usage.

Meaning

Only a small minority of questionnaire respondents discerned a significant difference between the meanings of mediation and conciliation (see Table 1). This was more than balanced by those respondents who defined the terms as having the same meaning while approximately one-half of all respondents regarded the terms as being a little different. We sought to determine whether these definitions varied between sub-groups of respondents. Specifically, were these perceptions influenced by the capacity in which the respondent appeared before the AIRC (union, employers, lawyer), the duration of their experience in appearing before the AIRC, what type of application they lodged, the number of employees in the company involved in the application, and whether the involved organisation was a public or private sector company? Only two of these factors were statistically significant differentiators (chi-square, p<.05). Respondents with more experience in appearing before the AIRC were more likely to perceive a difference between mediation and conciliation (p=.000) and those who lodged s.127 notifications were also more likely to perceive differences (p=.046).

The interviews and focus groups showed a similar range of responses. There was a confusing array of varying definitions of the two processes and what they entailed. Some parties, including both union and employer representatives, defined mediation as the more interventionist of the two approaches. One union delegate claimed that a facilitative or non-interventionist approach does not work, and that it merely perpetuates power imbalances. Others, including some parties who had received mediation training, defined conciliation as more interventionist, with mediation involving a process where no recommendations were made. According to these interviewees, conciliation allowed a more active role, where guidance and opinions are offered, possible directions for resolution are suggested, and advice is given generally to promote a settlement. Overall, there existed considerable confusion amongst interviewees and focus group participants as to the meaning of the two terms, which was only exacerbated by attempts to differentiate the two terms.

Parties held similarly diverse views on practical differences between conciliation and mediation. Representatives of all three disparate groups--employers, unions, lawyers--asserted that there was no practical difference. Others, particularly unions and employers, viewed mediation as a more interventionist style. One lawyer asserted that the terminology used varied depending on the context of the process that was taking place. In contrast, a member of the Commission asserted that the concepts of mediation and conciliation within the Commission appear to be bipolar in nature, with the level of intervention lying at different points along a continuum. Mediation was regarded as the more facilitative approach by Commission members generally, most of whom have received mediation training and thus were able to acknowledge a theoretical difference. Overall, and in line with the questionnaire findings, no uniform distinctions are drawn between the various parties as to the definitions of mediation and conciliation, and what, if any, the differences between the two are.

A number of related issues were also briefly raised in the various discussions and interviews conducted. Some employer groups asserted that the parties go to the Commission seeking some third party intervention, and these parties want the AIRC to give them a binding resolution by acting in a third party role. Other parties asserted that the recent push for mediation was the result of a perception that there was something wrong with the Commission and that it was ineffective. It was suggested that mediation be used pragmatically, and not be seen as a cure for any perceived woes within the Commission; and that a push for the use of mediation should be a properly considered concept, not a political ploy. The most commonly raised matter in relation to mediation was, however, the skills of the Commissioners in regard to utilising alternative dispute resolution methods. Both unions and employer representatives asserted that there was no perceivable improvement in the dispute handling process because of many Commission members receiving mediation training, and that such skills were infrequently, if at all, demonstrated by AIRC members during the resolution process. In order to facilitate better handling of the dispute resolution procedure, some parties asserted that the skill level of Commissioners should be generally improved.

In general, considerable confusion existed about both the definition and the actual use of mediation and conciliation. The confusion in the academic literature discussed above makes such a situation not at all surprising. What was clear from the focus groups, however, was that most parties were not unduly concerned with theoretical definitions of mediation and conciliation. Rather, the parties, particularly employers, desire a third party resolution for their dispute, and do not necessarily care what this resolution process is called, just as long as it achieves a settlement. Some slight concerns were raised about the role of the Commissioner in providing such resolutions, but it appears that generally the various groups still view the AIRC in a mainly positive light and as a primary source for industrial dispute resolution, despite any perceived problems.

Form and Extent

In what form, if any, did intervention take place following an application to the AIRC under s.99 or s.127? And how extensive is this intervention? Table 2 reports questionnaire data on the main form of intervention, adjournment into conference following the first hearing of the application. These figures show that four out of every five applications resulted in the Commission member adjourning into conference. In the majority of cases, the Commission member played a role in these conferences, that is, engaged in some form of non-arbitral dispute resolution. In a minority of cases, conferences were not used, indicating that some matters were seen as less appropriate for facilitative techniques and better suited to more arbitral-style methods.

What was the outcome of these conferences? Table 3 shows that all matters in dispute were resolved in roughly 30 per cent of conferences and that some matters were resolved in approximately 50 per cent. Similarly, it can also be said that a majority of matters still have some or all issues unresolved after the initial process, thus showing the need for further resolution processes after the initial conciliation hearing. Table 4 highlights what happened to outstanding, unresolved matters:

These data show that final resolutions were not often made in matters that were not successful in the initial resolution phase. Parties often resolved their own differences when s99 resolution processes failed: sometimes they utilised further conciliation procedures to get a resolution; sometimes they worked out a mutually acceptable resolution between themselves after the intervention of the AIRC; and sometimes matters were dealt with by private mediation or arbitration. Other actions taken by the parties included Federal Court proceedings and 'direct action' by a union, presumably in the form of industrial action.

How did respondents view these levels of intervention? Table 5 shows that almost two-thirds of respondents regarded AIRC involvement as being highly interventionist, that is, suggesting ways forward or commenting on the relative merits of each side's case. The remainder regarded Commission involvement as neutral or non-interventionist; there was significant overlap between this latter group and the group of respondents whose referrals to the AIRC resulted in conferences in which a Commissioner did not participate. In short, it would appear that, when members of the AIRC initiate conferences to deal with industrial disputes, they play a significant interventionist role, more akin to the traditional activist role than to the more passive facilitative role. What did respondents think of this activist role? Overall, approximately two-thirds of respondents supported it. Was this a common perception across different sub-groups of respondents? We analysed the influence of five factors (capacity in which respondents appeared in the AIRC, length of experience, type of application lodged, number of employees, and public or private sector company) on these perceptions. Level of experience emerged as an important differentiator. Respondents with more experience were more likely to view the AIRC as interventionist (p=.027); interestingly, they were also more likely to disagree with the proposition that the AIRC was too interventionist (p=.000). Public sector respondents were also more likely to regard the AIRC as interventionist (p=.029). But perhaps the most important finding was that just over 90 per cent of employer representatives disagreed with the view that the AIRC was too interventionist, a significantly greater percentage than union respondents (42 per cent) or other respondents (58 per cent). Arguably, employer representatives and those respondents with greater experience support and prefer an interventionist role for the AIRC.

We sought to explore these findings in more depth in the interviews and focus groups. One of the key points to arise was the differences in approach based on the section under which a party was making an application. Parties identified section 99 applications as either a logical first step, a 'catch all' provision within the WRA, or an abused mechanism used essentially 'for a chat with the assistance of the Commission'. One lawyer commented that these views made the number of adjourned s99 matters unsurprising. Some employer interviewees noted that in s99 applications Commissioners were less likely to 'get stuck in' and, consequently, the interviewees believed that, at times, a more interventionist approach would be helpful in resolving the dispute. All groups recognised that there were differences in the intervention levels between s99 notifications and s127 applications, with union interviewees in particular regarding s99 proceedings with less alarm.

All parties recognised s127 applications as more formal and more legalistic in nature, with legal representation being common for s127 matters, but not s99 applications. Indeed, one Commission member asserted that s127 matters were often given to presidential members or members from a legal background. A small number of union delegates recognised that s127 was more legalistic, but claimed that they lodged relatively few s127 applications, being mainly on the receiving end of them, while preferring s99 notifications instead. Employer groups recognised that s127 applications do not often result in orders, believed that more orders should be granted, but also claimed that conferences were still useful as they often resulted in settlements before the hearings of s127 applications were finished. Most parties recognised that higher levels of intervention were more common in s127 disputes.

The focus group discussions and interviews also raised the matter of the use of conferences as part of the initial dispute resolution process. All three groups broadly supported the use of conferences by the AIRC. It was identified as part of the initial conciliation process by some parties, or synonymous with conciliation, but going beyond it in focus. All parties agreed that a matter usually went into conference if it was worthwhile or appropriate, which often led to a resolution. One union delegate suggested that up to 70 to 80 per cent of matters were potentially resolved at this stage. Commissioners were identified by some parties as less interventionist at this stage, seemingly preferring to facilitate more creative and open negotiations between the parties and attempting to steer clear of exercising more interventionist powers. Indeed, one Commissioner pointed out that they felt they had failed if they were forced to arbitrate on a matter. There was, however, a recognition that this more mediation-based form of behaviour was linked to individual Commissioners and also that a more interventionist behaviour could emerge over time, an issue discussed below.

The final matter to arise from discussions about the form of alternative dispute resolution within the AIRC was the impact of the personal styles of Commission members. All parties recognised that, as a general rule, Commission members were more facilitative than in the past in their general approach. Indeed, a representative of one employer group went so far as to say that there was a disinclination on the part of Commissioners to arbitrate, and that the WRA was used to facilitate this approach. It was also acknowledged that there are exceptions amongst Commissioners, depending on the style of the particular member and the nature of the disputes before them.

There were, however, differing opinions on the suitability of the variation in approach by AIRC members. Generally, most union representatives preferred a variation in approach, depending on the issue in dispute. In contrast, some employer groups asserted that there was a need for less variability in styles and more equitable behaviour by the Commission members, especially with regards to arbitration. Lawyers recognised that variation in styles and background was a good thing, but thought that such variation needed to be put to good use, where the particular skills and styles of Commission members are most appropriate. Differences in style were often linked to the backgrounds of Commission members, the two main distinctions being employer/union backgrounds and legal/non-legal experience. As would be expected, unions generally preferred commissioners coming from an employee background, also claiming that such members were likely to be more interventionist. Employers accepted that outcomes were determined on a case by base basis, with the background of the presiding Commission member often affecting the style of proceedings and the outcome that was finally achieved. The differences in legal background and training were thought by all parties to reflect a more legalistic focus in the Commission generally, with the increasing use of lawyers in applications, and the escalating level of complexity within the WRA. It was recognised that legal backgrounds were more appropriate in certain matters, and less relevant in others, where practical experience of the industry was more suitable.

Overall, the format of dispute resolution within the AIRC varies enormously depending on a number of factors. What section of the Act a party makes an application under can affect the nature of proceedings, as can the style of the Commission member presiding over the matter. Conferences were extensively used as a preliminary attempt at dispute resolution, and seemingly are regarded as very effective in this role. The timing of recourse to the AIRC was also raised by the focus groups and interviewees as affecting the way they viewed the Commission as a provider of dispute resolution processes.

Future

We explored the views of interviewees, focus group participants and questionnaire respondents on two issues relevant to the future of dispute resolution within the AIRC: workplace dispute resolution and an external mediation alternative.

Some employers and a significant number of union respondents were of the opinion that dispute settlement should mainly take place at the enterprise level, with recourse to the AIRC only when all other avenues of resolution are exhausted. Other employers, some unionists and a number of legally-qualified respondents, however, argued that many parties are inadequately skilled to deal with disputes at the workplace level, which is why so many of them go to the Commission. It was recognised that they should try to reverse this situation, but in the short-to-medium term this was unlikely to change. In brief, for the foreseeable future, an external, dispute-resolving body was perceived as being necessary to assist the parties in their industrial relations interactions; workplace-based structures were simply not sufficiently developed. One possible alternative mechanism that was raised with the interviewees and focus group participants was the provision of a formal, external mediation service as an alternative to the Commission. Such an approach--based on a user-pay philosophy--was pursued in a Bill introduced into Parliament by the federal government in 1999. There were varying responses to this suggestion. Some parties were supportive of the idea, as long as the mediators were given some power to resolve disputes, seemingly suggesting a more interventionist third party role. These parties were prepared to use what they called mediation as long as it worked and the mediators were properly trained and accredited. Other parties had a number of concerns about external mediation. Some individuals were just uncomfortable with the idea; others thought that the AIRC was simply a more appropriate recourse for dispute resolution. Other concerns raised included the cost of external mediation, and the fact that parties are less likely to accept the mediator's suggestions, when compared with the authority of the AIRC. Overall, despite the fact that a number of agreements and awards currently include provision for mediation, use of an external mediation service or agency was not attractive to a significant majority of interviewees.

During the focus group discussions and interviews, parties also pointed out what they saw as limitations on the current role of the AIRC. These included the fact that the WRA had reduced the purview of the Commission. Most parties saw this as a 'bad thing', limiting the dispute resolution with the AIRC. Other parties argued that while radical reform was not called for, there was indeed room for improvement. Suggestions for possible reform included conciliation with no legal representation allowed, a strengthening of the powers of the AIRC to compel dispute resolution at a workplace level, and empowering the Commission to arbitrate on matters if both parties want such action, thus avoiding the current twenty allowable arbitration matters. These parties appeared to be unaware that some such activities were already potentially available under the present Act (see, for example, s111AA where both parties agree to abide by AIRC decisions).

In broad, similar findings emerged from the questionnaire survey. Most notable among these quantitative findings were that employer respondents were significantly more likely to disagree with the propositions that there should be an external dispute resolution process as an alternative to the AIRC (p=.030), that the AIRC should restrict itself only to conciliation (p=.033), and that the AIRC should not have greater power to compel the parties to participate in dispute resolution processes (p=.044). These data point to employer support not just for a continuing role for the AIRC but indeed for a strengthening of the powers of the AIRC in the future. Length of experience in the AIRC was also linked with the perception that the AIRC should have greater powers to compel participation in dispute resolution processes (p=.002): those with longer experience were more likely to disagree with the possibility of external mediation (p=.000), and with the AIRC's being limited to conciliation powers (p=.000). No significant differences emerged between public and private sector respondents or between small or larger enterprises.

Conclusion

This paper has argued that there is considerable confusion about the definitions of, and distinctions between, conciliation and mediation, both on an international and an Australian scale. The most common differentiator is the degree of intervention of the third party. In Australia, conciliation has traditionally been perceived as the most interventionist form; but our data show that practitioners, in the main, see few theoretical or practical differences between conciliation and mediation. Regardless of the descriptive term used, and regardless of the changed legislation, significant third party intervention occurs once disputes are notified to the AIRC. Arguably, despite attempts by some Commissioners to follow a more facilitative approach, our data support the contention that the traditional form of interventionist conciliation largely still predominates in most dispute resolution processes in the AIRC. This continues because of the support of the main parties to the dispute, particularly that of employers anxious to resolve the disputes. Indeed, a number of employers often held strong opinions about the principles and practice of the AIRC and expressed strong preferences for a more interventionist AIRC. Alternative dispute resolution mechanisms, such as workplace-based structures or private mediation, were not regarded as possible substitutes for the present role of the AIRC, at least in the short term.

Overall, the study found that there is significant support for the current practices and processes of the Commission. Theoretical distinctions can be drawn between the methods of mediation and conciliation, but in practice it appears that most users of the AIRC are satisfied with the interventionist focus in its current initial dispute resolution procedures, and may indeed wish for greater involvement from presiding Commission members. It seems that parties view the AIRC as a reputable and relevant provider of settlements for their industrial disputes, despite recent changes implemented by the Workplace Relations Act. Initial dispute resolution procedures, broadly falling under the heading of conciliation, are being employed to fill the void left by the reduction of the Commission's arbitral powers. It appears that parties seeking the Commission's aid care not for theoretical definitions of the resolution process that they undergo, but instead still need third party resolution for many of their industrial disputes, instead of resolving them at the workplace level between the disputing parties. While this runs contrary to the enterprise focus of the current government's approach to industrial relations, as embodied in the Workplace Relations Act, it appears that the Australian Industrial Relations Commission is still a functional and viable provider of dispute settlements, regardless of which theoretical resolution processes it employs.

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Helen Forbes-Mewett, Department of Management, Monash University 

Gerard Griffin, Division of Business, University of South Australia 

Jamie Griffin and Don McKenzie Department of Business Law and Taxation, Monash University

Table 1: Is mediation different to conciliation

                       S99 (N = 89)     s127 (N= 40)

Very Different            14.6%            17.5%
A little different        50.6%            50.0%
Same                      22.5%            17.5%
Unsure                    10.1%            15.0%
Other                      2.2%             0%

Table 2: The use of conference at initial conciliation hearing

                              S99 (N=89)   S127 (N=39)   s170LJ/LK

No Conference                 19.1%        20.5%         N/A
Conference without AIRC       5.6%         15.4%         N/A
member present
Conference with AIRC member   75.3%        64.1%         N/A
present

N/A Not applicable

Table 3: Resolution in the initial hearing

                              S99    s127    s170LJ/LK

All matters were resolved    26.1%   34.2%      N/A
Some matters were resolved    50%    44.7%      N/A
No matters were resolved     23.9%   21.1%      N/A

Table 4: Treatment of unresolved matters

S99 Hearings
Adjourned                 56.6%
Referred to arbitration   10.1%
Other                     33.3%

s127 Hearings
Order Made?
Yes                       37.5%
No/adjourned              62.5%

Table 5: Perceptions on levels of intervention

                         s99 (N = 86)   s127 (N = 37)

Highly Interventionist      64.0%           67.6%
Neutral                     20.9%           24.3%
Non-Interventionist         15.1%            8.1%