In Australian employment law, alternative dispute resolution (ADR) means settling a workplace dispute without a contested hearing. For unfair dismissal, the main ADR step is conciliation run by the Fair Work Commission. For disputes about an award or enterprise agreement, it is the dispute resolution clause in that document, which can lead to mediation or arbitration. This guide explains how each works, how conciliation differs from mediation, and what to prepare before you take part.
TL;DR
- Conciliation is the Commission's standard first step for unfair dismissal. It is voluntary and confidential, and nobody can force you to settle.
- Mediation and conciliation are close cousins. In Commission conciliation the conciliator leads the discussion, but does not decide the case or recommend an outcome.
- ADR does not pause the clock. You generally have 21 days from the date of dismissal to lodge, and conciliation only happens after you do.
- Most unfair dismissal matters that end well end by agreement, not by a ruling. Go in with your evidence, your numbers and a bottom line already decided.
Table of Contents
- What ADR means in a Fair Work dispute
- The four ADR methods, side by side
- Conciliation vs mediation: what actually differs
- How conciliation works for unfair dismissal
- Why settlement tends to beat a hearing
- Unfair dismissal, general protections and ADR
- Disputes under an award or agreement
- What the 21 days mean for ADR
- How to prepare for conciliation
- Our view: ADR works when the paperwork is ready
- Getting your matter ready
- FAQ
- Sources
What ADR means in a Fair Work dispute
ADR is a family of processes. The Commission describes the main ones as negotiation, mediation, conciliation and arbitration, and says that every award and enterprise agreement must contain a dispute resolution clause with step-by-step instructions.
That matters because "Fair Work dispute" covers two quite different situations:
- A dismissal dispute. You were dismissed and you apply for unfair dismissal or general protections remedies. The Commission arranges conciliation itself.
- A dispute during employment. You disagree with your employer about something an award, agreement or contract covers, such as rostering, classification or leave. You work through the dispute clause first, and the Commission can help only as far as that clause allows.
The Fair Work Ombudsman's best practice guide on dispute resolution lays out the same ladder: a negotiated outcome where the parties sort it out themselves, then a mediated outcome with an independent third party, and finally a decision made for them. Its advice is to start at the workplace, with a direct and respectful conversation.
The four ADR methods, side by side
| Method | Who runs it | Who decides | Binding? | Where you see it |
|---|---|---|---|---|
| Negotiation | You and the other side, often with a support person or representative | You both | Only if you sign an agreement | First step in almost any dispute |
| Mediation | An independent mediator, often private | You both | Only if you sign an agreement | Dispute clauses, private ADR providers |
| Conciliation | Commission staff member (sometimes a Commission Member) | You both | Only if you sign an agreement | Unfair dismissal and general protections claims |
| Arbitration | An independent decision maker | The arbitrator | Yes | Dispute clauses that allow it, or when parties consent |
The Commission's overview of resolving a dispute in your workplace notes that arbitration is a formal process in which an independent person decides the outcome when the parties cannot agree. For unfair dismissal, a Commission Member's hearing and decision is the equivalent of that last step.
Conciliation vs mediation: what actually differs
People search for this comparison because the two sound identical. Both are non-adversarial, both aim for an agreement the parties accept, and neither produces a binding result unless you sign.
The practical differences are these:
- Who provides it. Conciliation under the Fair Work Act is run by the Commission, and is generally conducted by Commission staff trained in workplace relations and unfair dismissal law. Mediation is more often provided by a private mediator or an organisation, usually at a cost, or by a body named in an agreement.
- How active the third party is. A conciliator leads the discussion and gives guidance, but the Commission is clear that the conciliator does not give legal advice, argue for either side, judge the facts or make a decision or recommendation. A mediator is typically described as helping the parties build their own agreement. In practice, the two styles overlap, so treat the difference as one of degree and setting rather than a bright line.
- Format. Commission conciliations are generally by telephone, so you do not need to attend an office.
- What follows if it fails. If conciliation does not settle an unfair dismissal claim, the matter can go to a Commission Member for a conference or hearing. Private mediation has no automatic next step unless a clause or agreement provides one.
One point in the Commission's material is worth underlining. At conciliation, any outcome is possible provided both parties agree, whereas at a hearing the outcomes are limited and strictly controlled by law. That flexibility is why agreements can include things a tribunal could not order, such as an agreed reference, a neutral statement or a change in how the exit is described.
How conciliation works for unfair dismissal
The sequence for an unfair dismissal claim looks like this:
- You lodge the application. The Commission's eligibility questions and application form come first. Our guide to Form F2 and the 21-day window covers the lodgement step by step.
- The employer responds. The employer lodges its response, and objections about eligibility (for example, that you were under the minimum period) can be raised at this point.
- Conciliation is offered. If both sides agree to take part, a Commission staff member leads the discussion. The Commission calls it a voluntary and confidential first step.
- An agreement is signed, or it is not. If you settle, a written agreement is prepared for both parties to sign. Unrepresented parties may be offered a 3-day cooling off period to decide whether to opt out.
- If there is no settlement, the matter is referred to a Commission Member and may go to a conference or hearing. Either party can ask for further conciliation at any stage.
We go deeper on what to expect on the call in our piece on Fair Work conciliation, and on the choice between settling and a ruling in conciliation vs arbitration.
Who can come with you
You do not need a lawyer to take part. The Commission has a page on representation by lawyers and paid agents, and permission rules apply to that, so check it before you engage one. Free help is available too: the Commission's Workplace Advice Service can tell you whether you are eligible for free legal advice. It is separate from making your application, and its own page warns that the 21 days still run.
Why settlement tends to beat a hearing
The numbers explain why conciliation matters. The Commission's compensation page reports that the median compensation is 5 to 7 weeks' pay and that fewer than 0.4% of applicants receive the statutory maximum. Reinstatement is rare in decided cases: in 2024-25, only 4 cases resulted in reinstatement, against 134 granted a monetary remedy.
The ceiling is the lower of half your annual earnings in the six months before dismissal and the annual cap. For 2026-27 that cap is reported as $95,050, and the figure is reset each 1 July. Our page on the $95,050 cap and unfair dismissal remedies explains how it is applied. Separately, a claim can be blocked if you earn above the high income threshold and are not covered by an award or agreement.
So a hearing is a slower, narrower route with modest typical results. A settlement can be reached sooner, can include non-monetary terms, and keeps both sides in control. That does not mean you should take any offer. It means you should know what a realistic tribunal result looks like before you hear the number.
Unfair dismissal, general protections and ADR
Both kinds of claim have a 21-day window, and both involve Commission-assisted resolution before any decision. They differ in what you must show.
- Unfair dismissal asks whether the dismissal was harsh, unjust or unreasonable (or, for a small business, whether the Small Business Fair Dismissal Code was followed). Eligibility depends on minimum employment period, coverage and income. See our guide to the minimum employment period.
- General protections asks whether the dismissal or other adverse action was because of a protected right or characteristic, such as making a complaint or taking leave. The Commission's page on whether you can apply notes that if you are forced to resign because of something your employer did, the law may treat it as a dismissal. Read our explainer on constructive dismissal if that is your situation.
If you are unsure which claim fits, take advice quickly from a community legal centre, your union or a lawyer, because the deadline is the same and you cannot afford to spend it deciding.
Disputes under an award or agreement
If your dispute is about something other than a dismissal, the route differs. The Commission says the dispute resolution clause in your award or agreement sets the steps, and the Commission can only help within what that clause allows. Typical steps are discussion with a supervisor, then with more senior management, then referral to the Commission for conciliation or mediation, and sometimes arbitration.
Two cautions follow. First, read your clause before you apply, because a mismatch between the form you choose and the clause can cause delays or leave the Commission unable to assist. Second, if your dispute is really a dismissal, do not treat the dispute clause as a substitute for an unfair dismissal or general protections application. The 21 days belong to the dismissal claim.
What the 21 days mean for ADR
The deadline is the single most common way people lose the chance to use conciliation. The Commission's application page sets the 21-day limit from the date the dismissal took effect. Late applications are possible, but only in exceptional circumstances, and the bar is high. Unfamiliarity with the rules is not usually enough.
The safe habit: lodge on time with what you have. You can add detail later. Waiting until you feel fully prepared is the risk. Our guide to checking unfair dismissal eligibility shows what to confirm first.
How to prepare for conciliation
Conciliation moves fast, often within an hour on the phone. Preparation is where most people gain or lose ground.
Build a one-page timeline
List the dates of your start, any warnings, meetings, the dismissal and your last day. Put the 21-day deadline at the top and the date you lodged next to it.
Gather evidence in a few folders
- Employment contract, award or agreement, and any policies
- Performance reviews, warnings and emails about the reasons given
- The dismissal letter or a note of what was said in the meeting
- Payslips and super records, so earnings can be calculated
- Records of job searches and any income since, which affect loss calculations
Casual workers should add rosters and payslips showing regular, systematic shifts. We cover that in casual employee unfair dismissal evidence.
Decide your outcomes before the call
Write down three numbers: what you would be happy with, what you would accept, and the point below which you would rather go on. Add non-money terms: a reference, a corrected record, the wording of your separation. Employers should do the same exercise, including the cost of defending a hearing.
Employers: know your benchmark
Small business owners with fewer than 15 employees are measured against the Small Business Fair Dismissal Code. It allows summary dismissal without notice or warning where the employer believes on reasonable grounds that the conduct is serious enough, so keep the documents that show what you believed and why.
Our view: ADR works when the paperwork is ready
We built TerminationHelp around one observation: the legal rules for unfair dismissal are knowable, but the process punishes people who arrive disorganised. The 21-day clock, the Commission's forms, the eligibility questions and the evidence all land on someone who has just lost their job or been served with a claim.
Conciliation is a good example. It is informal, which can make people think it needs no preparation. In reality, the person who can state dates, quote the document and name a realistic figure is the one steering the conversation. We do not predict outcomes or give legal advice. What we do is structure the preparation: eligibility checks, evidence organised against the timeline, and the right Fair Work forms in the right order, so you can file yourself or hand a clean packet to a lawyer, union or community legal centre.
Our approach is deliberately narrow. Everything is grounded in Australian legislation, Commission procedures and case law, rather than general legal chat. If your question is about private mediation of a commercial dispute, or a matter outside Fair Work law, this is not the tool.
— Nicolas
Getting your matter ready
If you have been dismissed, or you are a small business that has received an application, our preparation support walks you through eligibility, evidence and form generation for your specific matter. You can also start from the TerminationHelp home page to see how the process works before you commit.
FAQ
Is alternative dispute resolution compulsory for Fair Work claims?
No. Conciliation of an unfair dismissal claim is voluntary, and the Commission states that parties are under no obligation to reach a settlement. If it does not settle, the matter can go to a Commission Member. Dispute clauses in awards and agreements can require you to follow their steps before the Commission acts, so check yours.
Is conciliation the same as mediation?
They are similar but not identical. Both are voluntary and non-binding unless you sign, but Commission conciliation is run by Commission staff, usually by phone, and the conciliator leads the discussion without giving advice or making a recommendation. Mediation is more often private and varies by provider.
Do I have to wait for conciliation before the 21 days run out?
No. You must lodge your application within the 21 days, and conciliation happens afterwards. Waiting for a negotiation with your employer to finish can cost you the right to apply.
Can I bring a lawyer to conciliation?
Possibly. Representation by lawyers and paid agents is subject to the Commission's rules, so check its page on representation. You can also take part without one, and the Workplace Advice Service can tell you whether you qualify for free legal advice.
Sources
- Conciliation, Fair Work Commission
- What is conciliation?, Fair Work Commission
- Unfair dismissal: can you apply?, Fair Work Commission
- Resolve a dispute in your workplace, Fair Work Commission
- Compensation for unfair dismissal, Fair Work Commission
- General protections dismissal: can you apply?, Fair Work Commission
- Workplace Advice Service request form, Fair Work Commission
- Effective dispute resolution best practice guide, Fair Work Ombudsman
- Small Business Fair Dismissal Code 2011, Fair Work Ombudsman
- Unfair dismissal payout in Australia, The Aussie Corporate
Recommended
- Settle Fast or Force a Ruling: Conciliation vs Arbitration (Fair Work)
- Fair Work conciliation Australia, expect 5–7 weeks' pay
- Australia: $95,050 payout cap and unfair dismissal remedies
- Commission Ready Evidence File for Small Business Fair Dismissal Code
Article produced using AI. This is not legal advice.