CONCILIATION
Conciliation1 is a process in which a third party, called a conciliator, restores damaged
relationships between disputing parties by bringing them together, clarifying perceptions and
pointing out misperceptions. The commission for Conciliation, Mediation and Arbitration
(CCMA) defines a conciliation hearing as a process where a commissioner (or a panelist, in the
case of a bargaining council or agency) meets with the parties in a dispute and explores ways to
settle the dispute by agreement2.
If the dispute is settled, the commissioner will draw-up a settlement agreement which both
parties are to sign and issue a certificate recording that the dispute is settled.
A conciliation agreement is final and binding on both parties. If either party fails to uphold the
agreement, it can be made an award and thereafter certified as an order of court 3.
If the disputed is not settled, there are two options available: Firstly, if the matter remains
unresolved and relates to probation, the matter must continue as on a Concilliation-Arbitraion
(CON-ARB) basis4. If the matter related to dismissal(conduct/incapacity) or unfair labor practice
and the parties don’t object to the process, the matter will continue on CON-ARB basis.
Secondly, the commissioner might issue a certificate of non-resolution and the applicant can
then apply for arbitration.
1
Fenn, P.,” Introduction to civil and Commercial Mediation”, [Link], p.14.
2
The CCMA is a dispute resolution body established in terms of the labor Relations Act,66 of 1995(LRA) of the
Republic of South Africa
3
Ibid Note 2
4
Ibid Note 2
The advantage of conciliation is that it extends the negotiation process and allows for
settlement between the parties: for example, where a procedure requires that conciliation be
attempted before industrial action can be undertaken, time is allowed for both parties to “cool
off” and to approach each other in a friendlier manner whilst seriously attempting to settle
before engaging in industrial action which might eventually destroy the relationship 5.
Advantages of conciliation
i. It can be fast
ii. It can be informal
iii. Conciliation is cost saving
iv. It is flexible
v. It is confidential
vi. It preserves relationships
vii. It provides a range of possible solutions
viii. There is autonomy over the process and the outcome
Disadvantages of conciliation
i. It requires goodwill of the parties
ii. It may lead to endless proceedings
iii. Can create power imbalances
iv. It is non-binding unless parties reduce the agreement into writing
v. Creates no precedents
vi. It is not suitable when one party needs urgent protection like an injunction.
5
Ibid Note 2
Conciliation is different from mediation in that the third party takes a more interventionist role
in bringing the two parties together. Conciliation works well in labor disputes6. A conciliator who
is more knowledgeable than the parties, can help parties achieve their interests by proposing
solutions based on his technical knowledge that the parties may be lacking. This may actually,
make the process cheaper by saving the cost of calling any other experts to guide them.
The constitution provides for reconciliation which is believed to connote a deeper implication.
Under reconciliation in a community setting, once a dispute is heard before the council of
elders, the parties are bound to undertake certain obligations towards settlement 7. These are
mainly through payment of fines by the party found to be on the wrong. Once this obligation is
discharged, there is reconciliation which results in restoration of harmony and mending
relationships of the parties8.
While conciliation is concerned with finding peace and harmony by putting an end to a
conflict,reconcilliation seeks to reestablish relations, As such, it can be said to be a restorative
process which is desirable in building lasting peace and ensuring that competing interests are
[Link] and reconciliation can play a significant role in empowering parties to a
dispute by giving them substantial control over the process.
6
International Labor Office, “Collective Dispute Resolution through Conciliation, Mediation and Arbitration:
European and ILO perspectives. “High-level Tripartite Seminar in the Settlement of Labor Disputes through
Mediation, Conciliation, Arbitration and Labor Courts. Nicosia, Cyrus October 18th-19th,2007; S.10 of the Labor
Relations Act, No.14 of 2007, Laws of Kenya
7
Comment by Commissioner Otiende Amollo, during the 1st NCMG East African ADR Summit held at the Windsor
Golf Hotel, Nairobi on 25th and 26th September,2014; Art.159(2)
8
J. Kenyatta, Facing Mount Kenya, [Link]