22. CONCILIATION

22.1 TIO Role and Objectives

As an alternative dispute resolution body, the TIO aims to resolve complaints through conciliation; by getting both parties to consider each other's arguments and evidence and to agree on an outcome that is mutually acceptable.

The TIO's role in the conciliation process varies according to the level at which a complaint has been raised and the extent to which a complaint has already been investigated. The TIO takes a more active role in complaint resolution where a formal complaint is raised (i.e. where an investigation is opened). However, in the early stages of an investigation, the TIO will take the role of mediator or facilitator rather than issuing a determination or direction.

As one of its primary objectives is to resolve complaints speedily, the extent to which the TIO will impose its views will depend upon the conduct of both parties (given the circumstances of the complaint and the available evidence) and the likelihood of resolution being achieved through conciliation.

Where the parties concerned do not reach settlement of a complaint and the TIO considers the matter warrants further investigation, it will upgrade the complaint and continue to attempt to bring about a conciliated outcome while taking a more active role in the resolution process. Alternatively, where it has sufficient information to do so, the TIO may exercise its discretion not to investigate further or, providing the complaint is at a level that allows it to do so, make a binding decision.

22.2 Conciliation through referral

Most complaints brought to the TIO are resolved upon referral to a higher level complaints area or person nominated by the company concerned. When referring complaints in this way, the TIO is not formally involved in the resolution process and relies on the complainant and Member to work together to agree on a satisfactory outcome.

22.3 Conciliation at initial investigation

In first raising a complaint, the TIO will approach the investigation as an information-gathering exercise. The TIO seeks the Member's perspective and all information relevant to the complaint in order to assess its merits and, if necessary, determine what further action to take. However, at any stage during an investigation a Member has the opportunity to propose a resolution if it believes it is appropriate in the circumstances, or to make a business decision in order to settle a complaint.

Resolution of complaints through conciliation can be reached where a Member makes an offer or otherwise takes some action that is satisfactory to the complainant. Alternatively, resolution may be achieved during an initial investigation where the TIO writes to a complainant to highlight the relative strengths and weaknesses of their complaint and encourages settlement in light of those strengths and weaknesses.

22.4 Conciliation after further investigation

Where a Member's offer is not satisfactory to a complainant, or where the Member disputes the facts of a case and makes no such offer, the TIO must assess all the available evidence and decide whether the complaint warrants further investigation. Where the TIO decides to investigate further, it upgrades the complaint and provides the Member with an additional opportunity to consider the matter - and any additional information or documentation submitted - and respond to the TIO. Upgrading in this way is usually necessary because it is typical for a Member to take the full period of time allowed for it to respond to a formal investigation. The TIO upgrades to ensure cost recovery and compliance with its Complaint Escalation Guidelines.

In upgrading a complaint, providing it has viewed the Member's response, the TIO will advise a Member of its view, commenting on the relative strengths and weaknesses of the complaint and, if appropriate, highlighting applicable laws and/or industry codes. Doing so will, in most cases, bring about settlement of a complaint without the need for further escalation.

22.5 Conciliation at Level 4 status

Where a complaint is upgraded to Level 4, the TIO will continue to liaise with both parties to reach a resolution through consensus. This usually involves the further exchange of views and correspondence between all parties, and may involve the TIO and/or Member obtaining external legal or expert advice. Conciliation at Level 4 may also involve formal mediation via a teleconference or meeting.

When conducting a formal mediation, the Deputy Ombudsman will have regard to the ability of the respective parties to present and protect their own interests and may agree to a representative of the complainant attending to assist in the presentation of the matters to be resolved. Conciliation discussions are arranged to minimise the inconvenience to all parties and may involve the Deputy Ombudsman, Member representative, and complainant travelling to a convenient location.

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