I have just started an empirical project on the use of ADR in resolving discrimination claims, which I mentioned in an earlier post on this blog, and the process of completing the research has reminded me of some of the challenges of conducting empirical research, particularly when the focus of the study is conciliation. In this post, I reflect on these challenges for researchers.
First it’s necessary to explain the context and use of ADR in resolving discrimination complaints in Australia. A person who has experienced discrimination is required to lodge their claim at either the Australian Human Rights Commission or their local equal opportunity agency before they can proceed to court (except in Victoria where this has been optional since 2011). The agency will assess the complaint and if it has substance and falls within its jurisdiction, it will attempt to resolve the complaint using conciliation facilitated by staff conciliators. Most are settled and both the process and outcome are confidential. Those that don’t settle are either withdrawn or proceed to hearing where they may undergo mediation as part of the court’s case management processes.
Conciliation plays a central role in addressing discrimination complaints in Australia yet very little is known about it. Since Margaret Thornton conducted the earliest empirical study of conciliation in 1989, researchers have found it very difficult to get access to information about the conciliation processes. This is because most legislation requires the process to be confidential so that if the matter doesn’t settle, the parties can’t use what was said during conciliation in court proceedings.
If the matter does settle, though, the settlement agreement usually contains a confidentiality clause which can be worded broadly enough to prevent the parties from discussing the claim and the settlement outcome. This makes it next to impossible to interview parties about their experience of the conciliation process and its effectiveness, and it means information is not available, certainly not publicly, about what exactly the claims are settling for. Researchers can interview parties who proceed to court (if the researcher can get access to them) but their view of the process will be quite different from the people who settled their claim.
The most common method researchers have used to explore ADR in this area is to interview staff conciliators at equal opportunity institutions and lawyers. However, sourcing interview participants can present its own challenges. There is often not a big pool to draw from – the agencies usually have only a handful of staff conciliators, depending on the size of the State or Territory, who may then suffer from ‘research fatigue’ if they are always called upon. Some may not have enough experience in conducting conciliations. It can be difficult to identify lawyers with enough experience to comment on the process – lawyers don’t usually focus on discrimination law; it’s one part of a large practice area, usually employment law and even those on it may also be small. Barristers may not have any experience of the conciliation process because they will be briefed later.
In saying that, I think that there are many benefits of conducting empirical research on ADR. For one thing, it is a very interesting type of research to undertake. As a legal academic who is used to spending time in a library or at her computer reading legislation, cases and work by other academics, it is often a welcome relief to leave the office and speak to people!
Too often we can get caught up in the theory of law and how it should be operating, whereas empirical research reveals law ‘in action’ and shows its strengths and shortcomings. I have found this to be particularly important in this field where there are very few cases each year; the development of the law is taking place behind the conciliation doors. Empirical research is the only way of filling this gap in knowledge.
 Margaret Thornton, ‘Equivocations of Conciliation: The Resolution of Discrimination Complaints in Australia’ (1989) 52 The Modern Law Review 733.
This post draws upon a paper I presented with Dr Alysia Blackham at the Labour Law Research Network’s Conference at the University of Toronto, 25-27 June, 2017.
Yours is an interesting story which resonates with me in several respects. Firstly, I share your love of empirical research into ADR. Secondly, I think your observation about the difficulty of getting an adequate target sample is well made and is a problem I experienced in my own research. Thirdly it is a fertile ground in which to dig precisely because there is so much yet to be done both in the research and in bringing the research to the wider community. Thank you for writing this article.
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Empirical research about the strengths and shortcomings of law in action is a great resource