Once it is established that the Tribunal can deal with the complaint, a resolution will, in most cases, be attempted through conciliation.
It is important to understand the conciliation process.
- What is conciliation?
- What can you expect of the Tribunal?
- Do I need to be represented in conciliation?
- The types of outcomes
- Recording the settlement outcome - complaint treated as withdrawn
- Failure to settle the complaint
- Failure to attend a conference
What is conciliation?
Conciliation is a process which attempts to help the parties to a complaint (the complainant, the superannuation provider and other joined parties) resolve the complaint by mutual agreement.
Sometimes a complaint can be resolved without the need for a conference. In most cases however, the Tribunal sends a notice advising the parties of the time and date for the conference. The parties will be provided with an agenda for the conference and there may be an exchange of relevant information held on the Tribunal's file.
The conciliation conference will be conducted with all the parties by teleconference (where parties dial a centralised number to connect to the conciliator), in person or by video conference. Nearly all conciliations are conducted by teleconference. Most conferences take several hours and it may be necessary to convene more than once.
There are safeguards built into the conciliation process to ensure:
- he proceedings are confidential – if the complaint is not settled by conciliation, evidence about any word spoken or act done at the conference cannot be provided to a review meeting, unless the parties agree in writing to the release of such information
- the proceedings are informal – they are not bound by rules of evidence and there are no particular requirements as to its structure
- the parties behave appropriately – the conciliator can terminate the conference if a party's behaviour is considered to be inappropriate.
What can you expect of the Tribunal?
The Tribunal will:
- provide a conciliator who has control over the conduct of the proceedings
- arrange the conference at no cost to the participants, which can be conducted by teleconference, in person or by video conference. The type of conference will be determined by the Tribunal
- issue an agenda to all parties before the conference
- provide an interpreter where required.
Do I need to be represented in conciliation?
The simple answer is no. You do not need to be represented in conciliation.
The Tribunal was established to provide mechanisms for complaint resolution that are fair, economical, informal and quick. Accordingly, representation is regarded as unnecessary.
However, if you have a disability within the Disability Discrimination Act 1992, or feel the issues are too difficult to understand, you may request to have a family member, friend or solicitor represent you.
If you wish to be represented, you must apply to the Tribunal. You must provide the reasons you believe you should be represented during the conference. Please note that, should the Tribunal approve your request, you will be responsible for any costs associated with representation.
The types of outcomes
The following examples are representative of the outcomes achieved in conciliation.
- A full settlement in favour of the complainant
The facts disclosed in a conference may support the complainant's position that (s)he is entitled to the maximum benefit, and the decision may be altered accordingly.
- A compromise outcome
In a death benefit distribution, for example, the parties may agree to a different allocation of a death benefit than the distribution originally proposed by the trustee.
A party may have an expectation of the full entitlement of a disability benefit. The insurer may make an offer of a lesser amount in a compromise settlement.
- Deferred outcome
The parties may agree that further information is required, or they may agree to abide by the decision of another independent person (such as a medical specialist in a disability case). In such circumstances the conference is adjourned pending the receipt of the information or the findings of the independent person.
- Narrowing the range of issues in dispute
Although settlement may not be achieved in the conference, it may be possible to narrow the range of issues in dispute between the parties.
Recording the settlement outcome – complaint treated as withdrawn
- If the conciliation is successful the conciliator will record the outcome and issue the document to all parties to review, correct if needed, and sign. By agreement, one of the parties may also elect to do this.
- Once the Tribunal has received the signed documents from all parties, the complaint is treated as withdrawn under section 21 of the Superannuation (Resolution of Complaints) Act 1993.
- In more complex cases, and where parties have legal representation, the parties may elect to draw up their own deed of settlement.
Failure to settle the complaint
If a matter is not resolved at the conference, the conciliator will ask the parties if there is anything that was said or done at the conference that they agree should be made known to a Tribunal review meeting. This might be additional information or anything that may narrow the range of issues in dispute for the review. The complaints analyst will then inform the parties of the next stage of the process.
Failure to attend a conference
If you fail to attend the conference, the Tribunal may treat the complaint as if it had been withdrawn. A person other than a complainant commits an offence if they fail to attend the conference when required to do so.