1. Welcome and formalities
The commissioner will introduce him/herself and ask the parties to do the same and complete the attendance register. The commissioner will explain the process to be followed and check if an interpreter is needed. The commissioner is likely to explain that his/her role is to assist the parties to reach an agreement to resolve the matter, and remind parties that the proceedings are “without prejudice”. This means that nothing said during the hearing may be used in any other process, such as an arbitration hearing, unless this is ordered by a court. The commissioner may also advise parties that they should not find it strange if the commissioner asks to speak to each party separately. The commissioner is also likely to set rules of conduct expected during the process (for example no interrupting, phones off and no rude behaviour). The commissioner will also deal with any issues raised in terms of representation and jurisdictional issues.
The parties will have the opportunity to tell the commissioner their side of the story, largely without interruption. The commissioner may make brief notes for purposes of reminding him/her of issues which need to be raised as part of the conciliation process, but these notes may not be used by any party once the hearing has concluded. The commissioner may ask questions of clarification during this stage.
3. Problem solving
There are a number of ways in which the commissioner may try to assist the parties to settle the dispute. For example, the commissioner can talk to the parties in a joint session or may talk to one of the parties alone to investigate the basis on which that party is likely to accept a settlement of the dispute. The commissioner may also explain and clarify certain aspects of the law during this part of the process, so that parties may judge for themselves the strength of their case. This may include some “reality-testing” whereby the commissioner provides some indication of the likely strengths and weaknesses in each
party’s case, reminding the parties that s/he has not had the benefit of hearing any evidence relating to the dispute. The commissioner will try to generate proposals or an offer to settle from one or both parties. The commissioner may also make an advisory arbitration award or mediator’s proposal to settle
the dispute in certain circumstances. This may be a compromise position and either party is free to accept or reject the proposal. The parties are free to decide whether to accept or reject an offer and the commissioner cannot force a party to accept an offer.
4. Settlement and conclusion
Should the parties agree to settle the dispute, the commissioner will assist the parties by drafting a “settlement agreement”, which will be binding on the parties. The commissioner will explain that the agreement is in full and final settlement of the dispute. This means that the parties are bound by the agreement and they cannot take the matter further or dispute the terms of the agreement. After signature, the commissioner will provide both parties with copies of the agreement, bringing the matter to a close. If the matter remains unresolved, the commissioner will explain that the dispute may be referred to arbitration or, in some cases, the Labour Court. The commissioner will also issue a certificate indicating whether or not the matter has been resolved. The applicant will need this certificate to apply for arbitration if the matter remains unresolved unless the matter is a Con/Arb and will proceed to arbitration immediately or on a later date.