The Value and Techniques of Narrowing the Issues at Conciliation Presented by: Shawn Christiansen 2010 CCMA COMMISSIONERS INDABA “Against all Odds” Ritz Hotel 2 – 4 December 2010

What is Conciliation?  Informal process aimed at enabling the parties to a dispute to discuss their differences  Commissioner’s task/object is to help the parties to negotiate a settlement  Parties meet in a joint session and the actual negotiations in the process are in every respect voluntary  Process is endlessly flexible  Non-agreement does not involve any adverse consequence

The Narrowing of the Issues  The objective is to reduce the Arbitration duration and the number of issues in dispute  Also to Facilitate further negotiations S138(3)  Enabling tool used to determine what the "facts" in a dispute are  It is an evaluation of the dispute at hand  Establishes the specific procedural and/or substantive issues  Abbreviated summary of each party’s case  Extracts facts and positions before arbitration

The Values/Benefits  An opportunity to learn about the material facts and legal issues  One party will learn about the other party's case – assists to define dispute  ‘Surprise and Maneuvering’ can be eliminated  Prevents the arbitration of issues ‘known to be without merit’  Common cause issues can be determined  Expert witnesses can be done away with

The Values/Benefits continued  Jurisdictional issues can be cleared  Reduces the Arbitration to manageable parameters  Encourages flexibility and creativity  Identifies/Eliminates insubstantial claims  Assists parties to realistically further evaluate alternatives  Closes the gap dividing the parties  Develops the terms of reference for the arbitrator

The Techniques  Start with those on which agreement is likely to be reached  Admit ignorance and ask basic questions  Probe into the parties' dispute and seek specific information  Insist that the parties describe the material facts they intend to prove and the manner in which they intend to prove them  Inquire into the substantive and procedural issues/merits

The Techniques continued  Probe into the likelihood of success and the potential disadvantages of pursuing them  Clarify the allegations/claims  Identify issues/elements in dispute  Suggest the potential findings of fact and conclusions derived from case law  Advise why certain issues are not sustainable in terms of the law and the LRA  Ensure sufficient disclosure has been made

The Techniques continued  Identify those areas in which agreements can be reached on issues  Identify any preliminary issues that may arise and seek the other party’s position on those issues - Use of Legal Representation  Identify those issues from which parties might make admissions  Identify witnesses whose evidence may not be necessary, so that unnecessary subpoenas are not issued

The Techniques continued  Encourage a further attempt to settle or simplify the issues in dispute  Focus the parties on issues that divide them  Enquire into relief sought  Allow parties to ask questions in clarification  Ask parties to indicate documents it intends relying upon and witnesses they intend calling  Enquire from parties the legal principles applicable

The Techniques continued  Enquire into the number of hearing days that will be required for arbitration and clarify  Enquire whether an interpreter will be required  Develop non-binding statements - opening statements at later arbitration  Collate information in an organized manner  Compile outcome report  Reduce conclusions to writing