Plumbing Connection 4-2015

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PLUMBING CONNECTION SUMMER 2015 21
CONCILIATION
In the building and construction industry this is a
less common method of dispute resolution and is more
frequently used to resolve or attempt to resolve unfair
dismissal and similar type of workplace disputes. In fact
some readers of this article may have had some of their
own experiences (as business owners) with conciliations
in the Fair Work Commission when an employee has been
dismissed and makes an unfair dismissal application.
Conciliations are also used in areas such as family law,
general commercial law, human rights and discrimination
disputes as well as residential tenancy disputes.
Some say (and this issue has generated some debate)
that there is really no difference between conciliation and
mediation; however as a general rule, the conciliator has a
more interventionist role in actually actively assisting, to a
degree, the parties to resolve their dispute.
The good thing with conciliation is that because the
conciliator has a more active interventionist role, the
conciliator gives his or her view of how the matter may
be decided if it went to the next (litigation) stage in the
particular process. They still do not decide the outcome
of the dispute, despite the fact that they often have some
specialised knowledge or expertise in the particular area of
dispute.
CHOOSING THE RIGHT ONE
Other less common dispute resolution methods exist,
such as non binding expert appraisal, early neutral
evaluation and expert determination (a binding decision
results there from) which are best left to another day for
discussion.
As far as choosing which method to use, it comes down
to weighing up the advantages and disadvantages of each.
Parties in the building and construction industry may wish
to have their imposed (arbitration) resolution or their non
imposed resolution (mediation and conciliation) achieved
with the decision, or the assistance or ‘facilitation’ of
someone with experience, knowledge and or skill garnered
from working in this industry.
Added to the fact that the three processes discussed
above are all generally faster, cheaper and less formal than
court processes, it may well be that ‘the tipping point’ for
someone in this industry as to which process to use is to
choose the independent third person on the basis of who has
some experience, skill and or knowledge in this industry.
Paul Cott LLB (Hons), Grad Dip Legal Practice, LLM is a
Senior Associate of trans-Tasman lawyers Lovegrove Smith
and Cotton. Paul has been in commercial litigation with a
wealth of experience in building and construction litigation
and advice for a number of years. Paul is also a Member of
the Building Dispute Practitioners Society.
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