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?
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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
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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
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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
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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
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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
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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
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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
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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
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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