Conciliation

Conciliation is a process where a neutral third party, called a conciliator, actively helps people in conflict to negotiate an agreement they can all accept. At the National Sports Tribunal (NST), the conciliator is a specialist NST Member from the alternative dispute resolution list.

The conciliator actively works with parties to:

  • identify what the dispute is about
  • develop options
  • consider alternatives
  • help them reach an agreement

A conciliator takes an active and advisory role regarding the conciliation process, as well and the factual and legal issues in dispute. They provide opinions as to the strengths and weaknesses of the parties’ positions, and offer advice regarding possible outcomes.

All conciliations are held in private.

Reasons to use conciliation

Conciliation is less formal than arbitration and is often faster and cheaper.

Compared to mediation, the active, advisory role of the conciliator can be helpful when the issues in dispute are very complex, or where the parties’ views might be far apart.

Just like mediation and case appraisal, you can use conciliation for disputes over:

Conciliation, mediation or case appraisal are not available for anti-doping disputes or appeals.

For a conciliation to successfully resolve a dispute, the parties need to all agree on the outcome. This is different from arbitration, where the arbitrator will hear the evidence and make a binding and enforceable decision about the outcome.

This means that there is no guarantee a conciliation process will deliver a resolution. However, like mediation, conciliation will give the parties more control over the outcome. This increases the chances that all parties will be satisfied with the result. A conciliator will also play an advisory role, which may help parties to assess their positions more objectively and perhaps find a compromise solution.

We encourage all parties to be as open and honest as possible in a conciliation. This helps them to more effectively develop options and consider alternatives in order to reach a resolution. Nothing that is said or done in a conciliation can be used in an arbitration, if the parties are not able to resolve the dispute.

Differences between conciliation and mediation

There are some key differences between conciliation and mediation.

Conciliation

Mediation

The conciliator is a facilitator and also takes a directive and advisory role. They have particular expertise in the area of the dispute.

The mediator facilitates positive dialogue so that parties are able to reach their own outcome.

The conciliator determines the process including its formality and duration.

The mediation process is informal, flexible and can be structured to maximise the parties’ needs. The mediator seeks the parties’ agreement on how they would like the mediation to proceed.

The conciliator helps parties understand each other’s respective interests and positions. They also actively provide opinions on the facts and evidence, and the relative strengths and weaknesses of the parties’ cases.

The mediator remains neutral and helps parties understand each other’s respective interests and positions. They identify areas of common ground.

The conciliator makes suggestions about how the dispute might be resolved. They provide advice on possible terms of settlement but cannot impose a resolution.

The mediator helps parties to develop their own lasting solutions and to preserve ongoing relationships.

 

Cost

Most conciliations will cost $750. This amount includes the cost of application for conciliation and the service fee. If it is a complex conciliation, lasting more than 1 day, a further $750 per day may apply for every extra day.

Conciliation process

See Our process for how we handle dispute resolution generally.

There are a few details specific to conciliation:

  1. Before making an application for conciliation (or mediation or case appraisal) you should always talk to the other party/parties and seek their agreement. This is because conciliation relies on the willingness of all parties to compromise and reach an agreed outcome to be successful.
  2. You then advise the NST that you wish to have your dispute resolved by conciliation when you lodge an application with the Registry.
  3. Before we can formally accept an application for a conciliation, either:
    • you must pay the application fee (the parties can decide how to split the application fee between them), or
    • apply for us to waive the fee on the grounds of financial hardship
  4. Once we receive an application and accept it as valid, the NST Registry will organise a Preliminary Conference with the parties. During the Preliminary Conference, the CEO or their delegate will confirm that the parties are willing to proceed with conciliation and work together with them to determine:
    • the matters in scope for the conciliation
    • authority of the participants to settle the dispute
    • the key evidence that parties will be providing
    • the timeframes for making submissions
    • the likely timeframes for conducting the conciliation
    • involved parties that have not been previously identified
    • logistics – including the time and location of the conciliation session
    • additional costs (where relevant)
    • the allocation of an NST Member to conduct the conciliation
  5. After the Preliminary Conference, the NST Registry will facilitate the formal allocation of an NST Member to be the conciliator, either on agreement of the parties and the NST CEO, or if the parties can’t agree, determined by the NST CEO.
  6. The parties will then sign a Conciliation Agreement that sets out the matters they discussed and agreed at the Preliminary Conference.
  7. At the start of a conciliation, the NST Member will:
    • explain the process and procedure for conducting the conciliation
    • provide a brief description of their role as conciliator
    • set ground rules based on the agreement that has been reached by the parties
  8. After this, the parties will be given an opportunity to make a statement about the dispute from their perspective. The NST Member will take an active role in:
    • summarising views and options
    • discussing with the parties the strengths and weaknesses of their case
    • encouraging the parties to communicate directly with each other and clarify their interests
    • encouraging joint problem solving and suggesting specific matters that the parties can agree on
    • refining and narrowing the issues that are in dispute
    • providing advice to the parties about what will likely happen next if resolution is not reached, including potential costs to be incurred
    • making suggestions about possible resolution of the dispute
  9. Throughout the conciliation, there will likely be a mix of:
    • joint sessions with all of the parties, their representatives and the NST Member
    • private sessions between each of the parties and the NST Member
    • ‘break’ sessions where the parties can discuss issues and provide instructions to their representatives
  10. The conciliation ends either when the parties enter into a written settlement agreement that resolves the dispute, or when it is clear that the parties and the NST Member agree that the dispute cannot be resolved through conciliation.
  11. If a conciliation cannot resolve the dispute between the parties, the NST Member may, depending on the circumstances, suggest that the parties consider proceeding to arbitration in the NST to resolve the dispute. If the parties agree, the conciliator will contact the NST Registry and arrange a new case conference for arbitration.

Considering if conciliation is right for you

How complex is the dispute? If you have a lot of complex issues in your dispute, conciliation may be more appropriate for you than mediation. However, you may wish to consider arbitration as an alternative.

How much are you willing to pay to resolve this case? Most conciliations will cost $750.

Will you need a lawyer or advocate? Like all proceedings at the NST, parties may be self-represented and do not require legal assistance. Self-represented parties may prefer conciliation (or mediation), as these methods are more facilitative than arbitration and can be much less formal and stressful.

What kind of outcome are you seeking? In an arbitration, the NST can only order an outcome that is available under the rules of a sport. This means for instance, that the NST usually cannot order any financial award or compensation in an arbitration. In conciliation and mediation, because the outcome is agreed between the parties, there is much more flexibility in the final outcome that can be reached.

What happens if you cannot attend the scheduled conciliation? Tell us as soon as possible and we might be able to change the date.

What happens with any agreement? The outcomes of conciliation, mediation, and case appraisal are never published.