tawandamusarurwa
TO ensure a successful conciliation process, it is crucial to carefully consider the venue.
The chosen location should have a suitable single room that can comfortably accommodate all the parties involved, including the conciliator, during joint proceedings.
Additionally, there should be separate break-away rooms available, each large enough to accommodate individual parties for side meetings.
It is important that these rooms are adequately spaced apart or well-insulated to prevent parties overhearing each other during side meetings.
Throughout the conciliation process, the labour officer should assess whether it would be beneficial to separate the parties into side meetings, especially if a joint meeting is deemed unproductive in reaching consensus.
Generally, the process may begin with a joint meeting, but the labour officer must select the most effective procedure that allows for a timely resolution of the dispute without compromising fairness, effectiveness and perceptions of independence.
For a labour officer involved in a statutorily compulsory conciliation process, it is essential to recognise that the parties did not have a say in their appointment as the conciliator.
Therefore, the labour officer should take time to introduce themselves to the parties.
This introduction serves the purpose of establishing trust and rapport with the parties, as well as addressing any necessary preliminary matters.
The labour officer must make the parties feel confident that they are impartial and have no personal interest in the matters under dispute.
Initial side meetings with each party hold significant importance in the conciliation process.
After introducing themselves in side meetings, the labour officer should provide a clear explanation of the conciliation process, ensuring that the parties have a basic understanding of what it entails.
It is particularly important for the parties to grasp the distinction between conciliation as a consensus-building process and the adjudication process.
The parties involved must understand that the role of the labour officer is not to impose a decision on them.
Instead, the labour officer’s primary objective is to assist the parties to reach a mutually acceptable agreement.
They should establish ground rules for the conciliation process and foster an environment where parties feel confident enough to raise issues and make concessions.
This confidence is crucial for effective dispute resolution (National Union of Metalworkers of SA and Others v Cementation Africa Contracts (Ptv) Ltd (1998) 19 ILJ 1208 (LC), paragraph 21).
During side meetings, the labour officer should gather as much information as possible from each party.
They should also allow each party to present its side of the dispute in detail and ask probing questions to obtain relevant information.
Providing this opportunity early allows for the release of anger and emotion, which can contribute to more effective dispute resolution.
Subsequently, the labour officer should invite each party to address the dispute by disclosing as much information as they are comfortable with at that stage.
This includes providing background information, identifying disputed issues and stating their position on each matter.
To facilitate the conciliation process, the labour officer should employ effective interpersonal skills such as building rapport, active listening, paraphrasing, summarising, managing emotions (including anger and threats) and helping the parties in maintaining their dignity (Grogan, “Labour Litigation And Dispute Resolution”, 1st ed, Juta, p 113; Brand et al, “Labour Dispute Resolution”, 5th ed, Juta, pp 122-123; Darcy du Toit et al, “Labour Relations Law A Comprehensive Guide”, 6th ed, LexisNexis, pp 117-146).
The side meetings can also be used to promote settlement-seeking.
The labour officer may explore options, develop proposals and challenge the parties during these meetings.
Once the labour officer has gathered information from one party in a side meeting, they should move on to the other party and do the same.
This process of extracting information from both parties and confronting them with it in side meetings continues until the labour officer is satisfied that a joint meeting can be arranged.
During side meetings, the labour officer must clarify which information provided by each party is intended to be strictly confidential.
They should obtain clear authorisation before disclosing information from one side meeting to another.
Parties are more likely to disclose information if they have confidence in the confidentiality of the process, which is essential for the labour officer to assist in resolving the dispute.
During the conciliation proceedings, the labour officer should help the parties obtain admissions of relevant facts and documents related to the dispute.
They should facilitate for any necessary inspections or examinations, and encourage the exchange of reports or other useful documents.
After collecting preliminary information from the parties, the labour officer should analyse it to gain a deeper understanding of the dispute. They should seek to identify the underlying causes, the parties’ position on each issue and their expectations.
It is important to understand the fears, concerns and interests driving the parties’ positions and expectations, as this often holds the key to resolving the dispute.
Simultaneously, the labour officer should ascertain the value that each party places on their positions and needs, as well as the priority attached to each issue.
This understanding helps in finding common ground and potential solutions.
The labour officer should then bring the parties together in a joint meeting and present the analysis of the dispute based on the information gathered.
This step is crucial as it allows for a detailed understanding of the dispute, enabling creative problem-solving.
Superficial and adversarial exchanges of demands and concessions should be avoided, as they often stem from misunderstandings and posturing (Brand et al supra, p 127).
At this stage, the labour officer may challenge the parties to consider the best alternatives to a mutually agreed resolution.
Understanding the potential consequences of failing to settle the dispute can encourage the parties to be more flexible in their positions.
The next step is for the labour officer to explore options for settlement.
They should assist the parties in developing and considering a wide range of creative options that address their respective needs.
The goal is to find solutions that result in win-win outcomes and meet the parties’ needs as much as possible.
LEGAL DISCLAIMER: The material contained in this article is set out in good faith for general guidance in the spirit of raising legal awareness on topical interests that affect most people on a daily basis. They are not meant to create an attorney-client relationship or constitute solicitation. No liability can be accepted for loss or expense incurred as a result of relying in particular circumstances on statements made in the article. Laws and regulations are complex and liable to change, and readers should check the current position with the relevant authorities before making personal arrangements.
Arthur Marara is a practising attorney, author, consultant and law lecturer. He has vast experience in employment law and has worked with several corporates and other organisations. He is also a notary public and conveyancer. He is passionate about promoting legal awareness and access to justice. He writes in his personal capacity. You can follow him on social media (Facebook Attorney Arthur Marara), or WhatsApp him on +263780055152 or email [email protected]
Online Reporter