In Labour Dispute Resolution (JUTA, 2004) authors John Brand and Felicity Steadman define conciliation as a process by which a conciliator appointed by the CCMA, a bargaining or statutory council, or an accredited agency helps the parties to a dispute (such as an alleged unfair dismissal dispute, for example) try to reach a settlement. This can be done by any consensus-building process including mediation, by fact finding or by making recommendations, including advisory arbitration. It is generally a compulsory process by which one party refers the dispute to conciliation and the other party is compelled to attend. It may also be invoked voluntarily by both parties.
In other words, conciliation is a process that seeks to have parties to a dispute settle by agreement. We will illustrate this using the following example: Assume that Joe Bloggs has been dismissed for misconduct by his employer and feels, for whatever reason, that his dismissal is unfair. He may choose to approach the CCMA or bargaining council and contest the fairness of his dismissal by declaring a dispute against his employer and referring the matter to the CCMA or bargaining council. In these circumstances, the CCMA or bargaining council will set the matter down for conciliation in the hopes that the parties will be able to settle the dispute by agreement. The parties will be informed of the date and time of the conciliation process and will be required to appear at the offices of the CCMA or bargaining council on the day. Joe Bloggs and his employer will then sit down in front of a commissioner who will attempt to guide them towards a mutual settlement.
The conciliation process is without prejudice, which means that no evidence submitted or statements made will be recorded or held against the submitting party in any other process. This is to encourage the parties to freely explore all possibilities of settling without being prejudiced in any way by what they say during the conciliation process. Generally speaking, after introductions and housekeeping matters are dealt with by the commissioner, he or she will explain the process of conciliation to the parties. From there, the commissioner will need to obtain a high-level understanding of the facts surrounding the dispute. Usually, the applicant (Joe Bloggs, in our example) will give his version of what has happened and why he feels that he has been unfairly treated. Very often, the commissioner, after having understood the applicant’s version of events, will ask what the applicant requires in order for him or her to consider the matter resolved. Depending on how familiar the applicant is with the process, the commissioner may also need to prompt the applicant in terms of what he or she may ask for or suggest as a way to settle the dispute.
For example, Joe Bloggs may feel that he does not want to go back to work for his employer, but would rather receive compensation for the unfair treatment that he has received. So, he may propose that the matter be settled by the employer compensating him by paying him an amount equal to six months’ worth of wages. Once the applicant has explained his position, the commissioner will then request the employer to explain his version of events. Once the employer has given an account of what has transpired from his or her point-of-view, the commissioner will then enquire as to whether the matter may be settled and how. If the commissioner has already sought a proposal from the applicant, the employer may be asked to respond to the proposal. However, it should be noted that the process is informal and so the commissioner may request to caucus with either party individually to explore ways of settling the dispute. Each commissioner tends to have his or her own style and there are no hard-and-fast rules that govern how the commissioner will guide the parties towards a settlement.
Let’s assume that Joe Bloggs proposes that compensation equaling six months’ worth of wages will satisfy him. Assume further that the employer submits that six months’ worth of wages is too high and rejects the proposal. The commissioner may then request the employer to leave the room so that he or she can caucus privately with Joe Bloggs. During this private caucus, the commissioner may, for example, inform Joe that he or she doesn’t believe that Joe’s case is very strong. The commissioner then advises Joe that perhaps he should consider accepting an offer of compensation lower than that which he has proposed. The commissioner then calls the employer in and caucuses with the employer. The commissioner points out that whilst Joe’s case may not be very strong, there are some flaws in the employer’s case which may be of some concern and so the commissioner recommends that the employer consider tabling a counter proposal of two months’ wages. You can see that the commissioner is unable to make a ruling in favour of either party but may make recommendations based on his or her experience and knowledge of the law.
Should the parties to the dispute be able to find common ground, an amicable settlement may be reached. If this happens, the commissioner will capture the terms of this mutual agreement in writing and have the parties to the dispute sign in acceptance of it. In our example, lets assume that the employer tables a counter proposal of two months’ wages and Joe accepts the offer. An agreement has been reached and this settles the dispute. The commissioner will then reduce the agreement to writing and the parties will both sign in acknowledgement that the dispute has been settled. Copies will then be made for the parties and the commissioner will file the original agreement and close the file on the matter.
If the parties cannot find common ground, then it is likely that they will not be able to settle amicably and, since they cannot be forced to agree by the commissioner, the matter will remain unresolved. This means that the conciliation process has failed, and the matter must proceed to the next step in the dispute resolution process. What the next step is depends on the type of dispute that has been declared. In our example, this will mean that Joe Bloggs will be given the right to take the matter to arbitration.