2008 Commissioners Indaba 19 – 21 st November 2008 Sun City, North West Province HOW to CONDUCT ARBITRATION PROCEEDINGS RANDALL van VOORE

How to conduct an arbitration hearing – deciding on form Arbitrators’ discretion in terms of section 138(1) Why important - To determine dispute fairly and quickly And to dispense with substantial merits with minimum of legal formalities Rights of parties in terms of section 138(2) must be observed 2008 COMMISSIONERS INDABA November 2008 Sun City

Deciding on Form (factors to consider) Complexity of factual and legal matters Attitude of parties Whether parties are represented Whether legal representation has been granted Experience of parties 2008 COMMISSIONERS INDABA November 2008 Sun City

How to conduct an arbitration hearing – deciding on form Only once parties have narrowed issues, should form be decided upon Form should be clearly communicated to parties Arbitrator should advise as to extent he/she will obtain evidence 2008 COMMISSIONERS INDABA November 2008 Sun City

Deciding on Form – 2 types INQUISITORIAL (investigative) – arbitrator adopts role of finding facts and arbitrator requires parties to produce evidence and arbitrator questions witnesses ADVERSARIAL- parties are primarily responsible for presenting their cases, producing evidence and cross- examination of witnesses 2008 COMMISSIONERS INDABA November 2008 Sun City

How to conduct an arbitration hearing – qualities of an arbitrator IMPARTIALITY- not to engage in conduct which creates a reasonable perception of bias RIGHT to CALL OWN WITNESSES – however parties entitled to ask questions RIGHT to ASK OWN QUESTIONS- however parties entitled to ask additional questions 2008 COMMISSIONERS INDABA November 2008 Sun City

How to conduct an arbitration hearing – model form (six stages) PREPRATION and INTRODUCTION PRELIMINARY ISSUES NARROWING OF ISSUES HEARING OF EVIDENCE CONCLUDING ARGUMENTS AWARD 2008 COMMISSIONERS INDABA November 2008 Sun City

First Stage- Preparation and Introduction Prepare- by reading referral and other documents submitted At the start – introduce yourself and advise of your appointment Advise parties of any interest in the matter Advise parties of any contact you may have had with parties prior arbitration 2008 COMMISSIONERS INDABA November 2008 Sun City

First stage - Preparation and Introduction (Continued) Advise of the language to be used and ensure presence of interpreter Advise as to Rules of Proceedings Advise as to Role of Arbitrator and Powers in terms of section 138(1) Observe rights of parties in terms of section 138(2) Advise of right to revert to conciliation Inform of housekeeping arrangements 2008 COMMISSIONERS INDABA November 2008 Sun City

Second Stage - Preliminary Issues Enquire whether parties intend raising preliminary issues Raise own preliminary concerns Explain preliminary issues to other party Give parties an opportunity to lead evidence on preliminary issues if necessary Invite each party to argue preliminary issue DECIDE preliminary issue before dealing with merits 2008 COMMISSIONERS INDABA November 2008 Sun City

Third Stage - Narrowing Issues Enquire whether both substantive and procedural fairness, or only one in dispute Identify grounds for challenge Enquire into relief Enquire from employer extent of liability Allow parties to ask questions in clarification Ask parties to indicate documents relied upon and witnesses they intend calling Enquire from parties legal principles applicable if represented 2008 COMMISSIONERS INDABA November 2008 Sun City

Fourth Stage - Hearing of Evidence Record evidence and give each party opportunity to question witnesses Exclude other witnesses whilst one is testifying Swear witnesses in or affirm INQUISITORIAL- arbitrator poses questions, then party who called witness may ask questions, then other side cross-examines and finally re-examination ADVERSARIAL- party who called witness asks questions, then other side cross-examines and finally re-examination 2008 COMMISSIONERS INDABA November 2008 Sun City

Fifth Stage - Argument To address arbitrator on why one version is to be preferred (more probable) Facts relied upon Why those facts should be believed Which facts relied upon by other side are not accepted Why those facts should not be believed or not be accepted Relief sought Legal principles applicable New evidence during closing? 2008 COMMISSIONERS INDABA Or November 2008 Sun City

Sixth Stage - Award Facts concerning the referral Ruling on prelim issues and reasons therefore Nature of dispute Background facts Summary of evidence Analysis of evidence Analysis and determination of remedy ORDER 2008 COMMISSIONERS INDABA Or November 2008 Sun City