Even though the Tribunal may invite the parties to a conciliation conference, it should be remembered that the Tribunal has the power to treat a complaint as withdrawn at any time. The Tribunal is required to give you reasons for its decision and also allow you the right of reply before its final decision is made.

Also refer to the pamphlets:

Conciliation Conference Guide for Complaints and Joined Parties
Conciliation Conference Guide For Trustees & Insurers

What is Conciliation?

Conciliation is a process which attempts to get the parties to a complaint (the complainant, the Trustee/Life Company/RSA provider, the insurer and other joined parties) to 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 may be conducted with all the parties in person, by videoconference, or by teleconference (telephone hook-up). Nearly all conciliations are conducted by teleconference.

There are safeguards built into the process to ensure:

The proceedings are confidential - if the complaint is not settled by Conciliation, evidence about any word spoken or act done at the conference will not be provided to a Review meeting.
The proceedings are informal - it is not bound by rules of evidence.
The parties behave appropriately - the Conciliator can terminate the conference if a party's behaviour is considered to be inappropriate.
There are no particular requirements as to its structure.

Most conferences take several hours, and it may be necessary to meet more than once.

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 a meeting in person, by telephone hook-up or by video conference. The type of conference will be determined by the Tribunal having regard to the needs of the parties and funding.
Provide an interpreter where required.
Issue an agenda to all parties before the conference.

Who is the Conciliator?

The Conciliator is an experienced senior officer of the Tribunal who is trained in conciliation and independent of the parties.

What does the Conciliator do?

The Conciliator:

Conducts the proceedings.
Has the power to terminate the conference if the process is being abused by any party or if there is no prospect of resolution of the complaint.
Can ask questions of the parties, make suggestions and assist them in finding a resolution, but is not an advocate for any party and does not decide the merits of the case.
Cannot impose his/her own solution on the parties.
Records the settlement outcome where achieved unless the parties decide one of them will do so.

How is the conference conducted?

The Conciliator will:

Welcome and introduce the parties to each other.
Give a brief outline of the Conciliator's role and the ground rules for the conduct of the conference.
Invite the complainant to state (without interruption) his/her reason(s) as to why the decision in dispute is unfair and unreasonable and how it should be changed.
Invite the other party or parties to follow in the same manner.
Assist the parties to identify issues.
Conduct the joint session so that parties can explore the issues together and ask questions of each other to clarify matters.
Talk privately with parties to discuss any concerns they may have that were not fully understood, to answer any queries they may have or to receive any explanation/information for the purpose of input in joint session.

What does the Tribunal expect of parties?

The Tribunal expects that a party to a Conciliation conference will:

Attend with commitment to resolve the complaint.
Approach it with an open mind.
Be truthful and be prepared to be open in the discussion of the issues.
Behave appropriately.
Be at the meeting place or telephone contact point at least 15 minutes prior to the scheduled time.
Notify the Complaints Analyst or Conciliator immediately, if unable to attend the conference.

Do you need to be represented?

The simple answer is 'no'.

The Tribunal was established to provide mechanisms for complaint resolution that are 'fair, economical, informal and quick' and as such 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.

Any request for representation must always state your reasons, which the Tribunal will consider in making its decision whether to allow you to be represented.

Can you bring another person with you?

Yes. The Tribunal encourages a party to bring their spouse, partner, friend or other person for the purpose of support and/or as a confidant.

However the person cannot participate in the joint sessions of the parties. With your permission, the person may take part in the private discussions with the Conciliator, as the Conciliator sees fit.

How should you prepare for the conference?

Review the complaint and consider ways to resolve it.
Be prepared to discuss your views for resolution of the complaint at the conference.
Bring relevant material, in the form of notes and/or reports, to assist you.
Be prepared to make a short statement to explain why you believe the decision in dispute should be altered (or why it is correct) and the outcome you expect. You don't have to write out your statement. However if you do so, that's fine.
The statement can be as short as you wish it to be, but should not exceed 10 minutes unless the complexity of the matter dictates otherwise. Phone or check with the Tribunal beforehand if you have any concerns about this.

The types of outcome

The outcome is determined by the cooperative nature of the parties and the desire to reach a settlement of the complaint. 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 he/she is entitled to the maximum benefit, and the decision may be altered accordingly.
A compromise outcome
For example: In a death benefit distribution, it may well be that a party would consider allocating some of the benefit to the other party whose claim is not as strong.
A party may have an expectation of the full entitlement for a total and permanent disablement benefit (TPD). 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 (for example a medical specialist in a TPD 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 well 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 for the parties and issue the document to all for their review, corrections if any, and signature. One of the parties by agreement may also do this.
On receipt of the signed documents by the Tribunal 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 a Deed of Settlement between them.

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 the parties agree should be made known to a Review Meeting. This can be additional information or anything that may narrow the range of issues in dispute for the review. The Case Analyst will inform the parties of the next stage of the process.

Conciliation Attendance Guidelines

These are guidelines about when the Tribunal would ordinarily require persons to attend a conciliation conference as covered in [Subsection 28(7) of the Superannuation (Resolution of Complaints) Act 1993 (the Complaints Act)].

Purpose of the guidelines

These guidelines are published to assist in understanding the Tribunal's role in trying to resolve complaints through the conciliation process. The Tribunal is required by its governing legislation to formulate guidelines indicating the kind of circumstances in which it would ordinarily require persons to attend a conciliation conference. Attendance at a conference may, at the Tribunal's discretion be by telephone, in person or by any other means of communication.

Conciliation by its very nature entails a consensual arrangement by the parties with the aim of reaching an agreement for resolution of the complaint. The Tribunal's conciliation process is a facilitative process. This means the Tribunal provides the forum for the parties to the complaint to engage in open discussion about the complaint with the aim of reaching an agreement.

The Tribunal cannot compel the parties to reach agreement. The Tribunal's role is one of hosting the conference and providing assistance and information to the parties to arrive at an amicable settlement of the complaint or in narrowing the range of issues in the complaint.

Matters for the Tribunal to consider on the holding of a conciliation conference

Where a complaint has been made to the Tribunal, provided the Tribunal has the power to deal with that complaint and it is not withdrawn, the Tribunal is required to try and settle the complaint through conciliation.

The Tribunal may require the parties to the complaint or others whose presence is likely to be of assistance in settling the complaint to attend a conciliation conference. This will be done by written notice.

The Tribunal is also required to have regard to the objectives in section 11 of the Complaints Act, which requires that the mechanism for conciliation must be one that is 'fair, economical, informal and quick.'

Typical circumstances requiring attendance at a conciliation conference

Death benefit distribution
If a person makes a complaint to the Tribunal about a decision of a trustee of a regulated superannuation fund to distribute a death benefit in a particular way, the Tribunal would make inquiries and obtain relevant information from the trustee and any other party involved in the matter. The Tribunal would normally proceed with a conciliation conference.
Disability benefits
In a complaint relating to a claim for a disability benefit that is declined on its merits, the Tribunal would normally schedule a conciliation conference. With a technical or complex matter, such as alleged entitlement to insurance cover or alleged non-disclosure of a pre-existing medical condition by the complainant, the Tribunal may make appropriate inquiry of the trustee and/or insurer with a view to proceeding to a conference for the purpose of narrowing the disputed issue(s) and/or clarification of the evidentiary issue(s).
Administrative actions, disclosure issues etc.
Decisions by trustees and other decision makers comprising administrative action, account balance advice, benefit calculation, rollover request, account interest crediting and disclosure issues relating to the provision of information and advice (just to mention some), are matters ordinarily regarded as appropriate to the conciliation process.

What procedures does the Tribunal follow relating to conciliation conferences?

The following steps will be taken:

The parties will be notified of the proposed conciliation conference by telephone initially or in writing.
In the case where a party expresses disagreement with proceeding to a conference, then the Tribunal will consider the reasons offered before deciding whether or not to proceed with the conference.
Because of the varied locations of the parties, the conferences will, unless otherwise decided by the Tribunal, be conducted by telephone.
Where a conference results in resolution of the complaint or an undertaking being given by one of the parties to conduct further enquiries or obtain further reports, the Tribunal will confirm the outcome in writing to all parties.
There is a presumption against representation contained in s.23 of the Complaints Act, except where the complainant has a disability (as defined in the Disability Discrimination Act 1992) or where the Tribunal "considers it necessary in all the circumstances". Where the Tribunal has, prior to the holding of a conference, exercised its discretion to allow an individual to be represented by an agent (which term extends to include legal representation), then the individual may be represented by that agent. Where no application to the Tribunal has been made for representation, then a person wishing to be represented at a conference must either seek the Trustee's agreement in advance, or at least have the arrangement agreed in advance with all of the other parties to the conference. Where the Tribunal has refused representation by an agent then the person must participate himself/herself.

[Note: For those parties who have been given leave by the Tribunal to be legally represented, the Tribunal has no power to award costs, i.e. any party who has legal representation at a conference before the Tribunal must to bear their own legal costs.]

Failure to attend a conference

If a complainant fails to attend the conference, the Tribunal may treat the complaint as if it had been withdrawn by the complainant under section 21 of the SRC Act. A person other than a complainant commits an offence if they fail to attend the conference when required to do so. The penalty is 30 penalty units or imprisonment for six months.