Dispute resolution in South Africa has developed from the traditional methods towards a more collaborative and flexible process. Alternative Dispute Resolution mechanisms allow for cooperation, confidentiality and cost-effectiveness. These methods provide a pragmatic approach which can resolve time-consuming disputes, and which curb litigious costs in labour law.
The use of conciliation and mediation is vital in preventing court backlogs and delays. Conciliation and mediation provide an opportunity for parties to actively engage with the assistance of an impartial third party.
Even though they are sometimes used interchangeably, there are differences between conciliation and mediation within the South African context.
This article explores these mechanisms and their relevance.
In terms of Section 135 of the Labour Relations Act 66 of 1995 (“the Act”) when a dispute has been referred to the Commission, the Commission must appoint a commissioner to attempt to resolve it through conciliation. The appointed commissioner must attempt to resolve the dispute through conciliation, within 30 days of the date the Commission received the referral, and the parties may agree to extend this period.[1]
Let us explore the difference between conciliation and mediation:
Conciliation is a statutory process which obliges parties to seek conciliation before arbitration. Conciliation is aimed at allowing parties to arrive at a mutually agreed resolution rather than one enforced by the law.[2] In Kasipersad v CCMA and Others (2003), it was stated that “the function of a commissioner is to steer the parties towards a mutually agreed outcome”.[3]
With mediation, however, the parties themselves agree to participate in the process and appoint a third party to act as mediator to facilitate the resolution of the dispute. Mediation is a process in which parties, with the assistance of an objective third party, determine issues in dispute between them and then narrow these issues or determine workable solutions, with the ultimate aim of reaching a mutual agreement that satisfies both parties’ needs.[4]
Parties should approach mediation when, for example:
- The parties would like to preserve their relationship going forward and there is no irretrievable breakdown of their relationship;
- The parties have vested interests in the outcome of the matter;
- If there is an imbalance of power and difficulty to reach a suitable agreement;
- Parties want to avoid litigious costs;
- Parties are unable to communicate effectively and directly; and/or
- Parties cannot find a solution themselves.
In terms of Section 34 of the Act, statutory conciliation is compulsory which is when one party declares a dispute and refers the dispute to the Commission for Conciliation Mediation and Arbitration (“CCMA”) or to the relevant council. Whereas mediation is either by ad hoc agreement or can be a requirement of a contract (for example, if a service agreement requires mediation if the dispute cannot be resolved as part of a dispute resolution clause).[5]
In a statutory conciliation, the parties are not at liberty to choose a conciliator. The conciliator can either be appointed by the CCMA or a relevant council. However, in mediation, the mediator is appointed by agreement between parties or by an impartial third party.[6]
The duties of the conciliator and mediator:
The mediator has no prescribed powers, save for any granted to him by the parties and may use various techniques to assist the parties to resolve the dispute. A core value of a mediator is confidentiality.
In terms of Section 135 of the Act, the conciliator must facilitate communication between the parties, act impartially, use techniques such as mediation and should flexibly apply various techniques that are applicable as per circumstance in order to guide the parties to resolving the dispute of reaching settlement.[7]
In First National Bank Ltd v Mooi NO and Others,[8] the court found that the conciliator committed a gross irregularity and exceeded his powers when he declared that an agreement between the parties was invalid, yet the agreement itself had never been placed before the conciliator.[9]
These additional available mechanisms alleviate pressure on the legal system, especially by the introduction of the Magistrates Court Rule 72 and Uniform Rule 41A(2), which stipulate that every new action or application must be accompanied by a notice agreeing to or opposing mediation. This simple notice has most certainly increased the number of referrals to mediation, which in turn free up court time to focus on other matters at court and existing backlogs.
In everyday people’s lives, when there are disputes in the community or even families, they are unknowingly utilising the above-mentioned tools to resolve their disputes (albeit perhaps not in as formal circumstances).
Mediation and conciliation may be additional steps that will not necessarily provide a “quick fix” to an issue. However, they are necessary to resolve disputes without further litigious costs and may assist mending relationships beyond these processes, as well as possibly narrowing the matters in dispute.
[1] Darcy Du Toit, et al. “Labour Relations Law a Comprehensive Guide” 6th edition LexisNexis South Africa (2015) [2] Darcy Du Toit, et al. “Labour Relations Law a Comprehensive Guide” 6th edition LexisNexis South Africa (2015) [3] Kasipersad v CCMA and Others (D719/02) [2002] ZALC 89; (2003) 24 ILJ 178 (LC); [2003] 2 BLLR 187 (LC) (15 November 2002) [4] Folberg & Taylor Mediation: A Comprehensive Guide to Resolving Disputes Without Litigation (1984) 7. [5] The Labour Relations Act 66 of 1995. [6] The Labour Relations Act 66 of 1995. [7] Kasipersad v CCMA and Others (D719/02) [2002] ZALC 89; (2003) 24 ILJ 178 (LC); [2003] 2 BLLR 187 (LC) (15 November 2002) [8] First National Bank Ltd (Westbank Division) v Mooi NO and Others (JR1018/07) [2009] ZALC 184 (5 February 2009) [9] First National Bank Ltd (Westbank Division) v Mooi NO and Others (JR1018/07) [2009] ZALC 184 (5 February 2009)While every reasonable effort is taken to ensure the accuracy and soundness of the contents of this publication, neither writers of the articles nor the publisher will bear any responsibility for the consequences of any actions based on information or recommendations contained herein. Our material is for informational purposes and should not be construed as legal advice.
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