Conciliation - further information
The role of the conciliator
The conciliator is independent and neutral and does not advocate on behalf of either party. The conciliator’s role is to facilitate communication between the parties. The conciliator helps the parties clarify their concerns; talk with each other about those concerns and assists them in trying to reach agreement on ways to resolve them. The conciliator does not decide who is right or wrong, or decide how a complaint should be resolved. The conciliator has no power to make decisions or findings about what occurred or make a determination about compensation.
Involvement of lawyers and other parties
If you are claiming compensation you should get legal advice about what is an appropriate amount to seek. You should also get legal advice about the time limits that apply for bringing a legal action if conciliation is unsuccessful. Providers are also encouraged to seek legal advice. Lawyers do not usually attend conciliation unless the Commissioner considers it would help to resolve the complaint. Parties can be supported by family members, friends or colleagues, although they cannot actively participate in the conciliation.
Confidential and privileged
All parties must keep information provided in conciliation confidential. Anything said in conciliation and any information given during conciliation cannot be used as evidence in a court or tribunal, and the Commissioner cannot use anything said in conciliation as the basis for an investigation.
The conciliation process
The conciliation process is flexible and will be designed in consultation with both parties. Where the dispute is about a health service provider's liability for negligence or personal injuries, the conciliator may arrange for an independent expert opinion to be obtained. The opinion is then used as the basis for further negotiations.
If a complaint is resolved with an agreement for the payment of compensation, both parties sign an agreement or deed of release that no future legal action can be taken in respect of the complaint. Where a financial settlement involves a child it will be necessary for the settlement to be approved by the Supreme Court. Where a financial settlement involves a person with mental incapacity the settlement will need to be approved by the person's administrator or a person acting under an enduring power of attorney.
Repayment of monies
A financial settlement can result in monies having to be repaid to Medicare, private health funds, Centrelink and other agencies. A settlement may also give rise to preclusion periods during which you may not be eligible to receive social security payments. Parties should seek independent advice about how a settlement might affect them.
Public interest issues
All issues discussed during conciliation are confidential. If the complaint raises matters of public safety or public interest, the Commissioner may investigate those issues before, during or after the complaint is settled. The parties will be notified if an issue of public interest arises.