What is conciliation?
Conciliation is a process in which the parties to a dispute, with the assistance of an impartial conciliator, identify the issues in dispute, develop options, consider alternatives and endeavour to reach agreement. The conciliator may have an advisory role on the content of the dispute or the outcome of its resolution but not a determinative role. The conciliator may advise on or determine the process of conciliation whereby resolution is attempted, and may make suggestions for terms of settlement, give expert advice on likely terms, and may actively encourage the parties to reach agreement.
When is conciliation available?
How is conciliation undertaken?
Conciliation in the Court is undertaken pursuant to s 34 of the Land and Environment Court Act 1979 (the Court Act). Special arrangements for conciliation apply for residential development appeals under s 34AA of the Court Act. Conciliation in the Court involves a combined or hybrid process of, first, conciliation and then, if the parties do not agree to resolve the dispute at the conciliation, adjudication. The procedures for conducting a conciliation conference are set out in the Conciliation Conference Policy. (PDF , 139.7 KB)
Preparing for the conciliation
In preparation for the conciliation conference, you should ensure that everyone necessary is available to attend. This will include people from whom you may need to obtain advice or opinion throughout the conciliation, such as a town planner, architect, or engineer etc. This will also include the person who has the authority to reach agreement at the conciliation conference, if that is someone other than yourself. If you have a solicitor, they should also be in attendance. You may also choose to have a barrister represent you at the conciliation.
If there is a proposal that you want to discuss with the other party at the conciliation conference, you should provide that proposal to the solicitor for the other party at least 14 days before the conciliation.
Conciliation of proceedings other than residential development appeals
The Court may arrange a conciliation conference at any time, with or without the consent of the parties (s 34(1) of the Court Act). The conciliation conference will be conducted by a commissioner or a registrar of the Court (s 34(2) and s 34(14)) of the Court Act). Often, the commissioner will have technical knowledge and expertise on the issues relevant to the dispute.
At the conciliation conference, the conciliator facilitates negotiation between the parties with a view to their reaching agreement as to the resolution of the dispute.
If the parties are able to reach agreement on the terms of the decision in the proceedings that would be acceptable to the parties, and that decision is one the Court could have made in the proper exercise of its functions, the conciliation commissioner or registrar must dispose of the proceedings in accordance with the decision and set out in writing the terms of the decision (s 34(3) of the Court Act).
If the parties are not able to reach agreement on the substantive outcome of the proceedings, they can nevertheless agree to the conciliation commissioner or registrar adjudicating and disposing of the proceedings, either following a hearing held immediately after the conciliation conference has been terminated or at a later date or, if the parties consent, on the basis of what has occurred at the conciliation conference (s 34(4)(b) of the Court Act
When giving the decision disposing of the proceedings, the commissioner or registrar is to give reasons for the decision, either in writing or orally and recorded by means that can be reproduced later (s 34(5) of the Court Act).
If the parties are not able to agree either about the substantive outcome or that the conciliation commissioner or registrar should dispose of the proceedings, the conciliation commissioner or registrar must terminate the conciliation conference and refer the proceedings back to the Court for the purpose of being fixed for hearing before a different commissioner or a judge. In that event, the conciliation commissioner or registrar makes a written report to the Court stating that no agreement was reached and that the conciliation conference was terminated, and setting out what in the conciliation commissioner’s or registrar’s view are the issues in dispute between the parties in the proceedings (s 34(4)(a) of the Court Act). This is still a useful outcome as it identifies and narrows the issues and often results in the proceedings being able to be heard and determined quickly and with less cost.
The conciliation commissioner is disqualified from hearing or further participating in the proceedings, unless the parties otherwise agree (s 34(13) of the Court Act).
Conciliation of residential development appeals
Residential development appeals are appeals under s 8.7 or s 8.9 of the Environmental Planning and Assessment Act 1979 concerning detached single dwellings and dual occupancies (including subdivision), or alterations or additions to such dwellings or dual occupancies. Residential development appeals are required to be dealt with by a special, streamlined conciliation and adjudication process under s 34AA of the Court Act. This involves the process under s 34 of the Court Act described above, but with two important differences.
First, the Court must arrange a conciliation conference for residential development appeals (s 34AA(2)(a) of the Court Act). Second, if the parties are not able to agree about the substantive outcome at the conciliation conference, the conciliation commissioner or registrar must terminate the conciliation conference and immediately proceed to adjudicate and dispose of the proceedings, either after a hearing held immediately or, if the parties consent, on the basis of what has occurred at the conciliation conference. The parties do not have the option of having the proceedings return to the Court to be heard by a different commissioner or judge (see s 34AA(2)(b) of the Court Act).
Duty to participate in good faith
Each party to proceedings where a conciliation conference has been arranged is under a duty to participate, in good faith, in the conciliation conference (s 34(1A) of the Court Act).
Outcomes and orders
A conciliation conference might result in the following outcomes:
- the parties might agree on the terms of a decision in the proceedings that would be acceptable to the parties and the conciliation commissioner or registrar is to dispose of the proceedings in accordance with that decision, if it is a decision that the Court could have made in the proper exercise of its functions;
- the parties might not reach agreement on the terms of a decision in the proceedings but, after terminating the conciliation conference, the conciliation commissioner or registrar adjudicates and disposes of the proceedings (either by agreement of the parties to do so for matters under s 34 of the Court Act or by statutory obligation for matters under s 34AA of the Court Act); or
- the proceedings are returned to the Court to be listed for hearing and determination by a different commissioner or a judge (for matters under s 34 of the Court Act).
Further information on conciliation
Further information on conciliation generally is available on the Courts and Tribunal Services website at conciliation.
You should also ensure that you are familiar with the Conciliation Conference Policy. (PDF , 42.1 KB)