The Value of Issue Narrowing in Conciliation Techniques

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

2. 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

3. The Narrowing of the Issues • The objective is to reduce the Arbitration duration and the number of issues in dispute • Also to Facilitate further negotiationsS138(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

4. 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

5. 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

6. 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

7. 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

8. 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

9. 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

10. 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