HPS 2403: Industrial Relations Assignment Group 2.

Jkuat: Nairobi Centre.

4th Year; Bachelor of Purchasing and Supplies.

Kyengo Jackson: HD211-1725/2008.

Jacinta Wamwaki: HD211-1787/2008

Peris Wachuma: BPS 018-0470/09K

Eunice Mapenzi: HD211-1709/2008.

Caroline Musyimi: HD211-3344/2008

Question:

Discuss Conciliation from perspective of Industrial

Relations.

Several Definitions.
 • Conciliation is means of intervening into the negotiating process
which may assist the two parties to resolve a dispute or failure to
agree."
• Conciliation is a process by which the parties to a dispute,
together with the assistance of a neutral conciliator, attempt to
find a resolution to the dispute.
• Conciliation is a method of alternative dispute resolution that is
used to help settle some sort of disagreement between two
parties .Alternative Dispute Resolution (ADR) typically refers to
processes and techniques of resolving disputes that fall outside
of the judicial process (formal litigation – court).
• Conciliation is defined by the Tribunal as: A process in which the
parties to a dispute, with the assistance of a Tribunal member,
officer of the Tribunal or another person appointed by the
Tribunal (the conciliator), identify the disputed issues, develop
options, consider alternatives and endeavour to reach an
agreement.

Background Information.

When two parties engaged in a dispute agree to the process of

conciliation, a conciliator is chosen with working knowledge of the
dispute at hand. The conciliator meets with both parties separately
and then actively works with both sides to achieve a resolution. This
means that He or she then goes back and forth between the two
parties, seeking to dissolve tension and get the principals to figure out
what they want most out of the process and also what they are willing
to give up in the negotiations. In this way, a conciliator can actively
bring about the terms of a settlement.

Conciliation sometimes serves as an umbrella-term that covers all

mediation and facilitative and advisory dispute-resolution processes.
Neither process determines an outcome, nor do both share many
similarities. The conciliator with the heavy burden of having to
communicate between the two sides. The conciliator is trusted by both
parties to come up with a solution that's amenable to both.

The Conciliation Process

The process has five stages. It is intended to be flexible and informal. The
conciliator may:
• Give advice on the case management processes
• Offer opinions as to the issues of factual or legal dispute between
the parties;
 • Give advice about the costs implications and other non legal
consequences; and
• Ask parties to explain any decision making constraints

Referral to conciliation will usually take place following a conference.

1. Preparation and Conciliator’s Opening Statement: The opening
statement includes a brief description of the role of the conciliator and
participants, the conciliation process and any ground rules.

2. Parties’ Statements: Each party or their representative provides

a statement about the dispute from their perspective. Emerging
interests, needs and options for resolution are acknowledged for use
later in the conciliation.

3. Joint Exploratory Session and Discussion: The conciliator will take

an active role, summarizing views and options and may also discuss with
the parties the strength and weaknesses of their case. The conciliator
encourages parties to communicate directly with each other. The parties’
interests are further clarified. This provides the basis for joint problem
solving, raising options for agreement and may be followed by further
joint sessions where necessary. During this stage, the parties may take a
break from joint session to give lawyers instructions and consider offers or
advice.

4. Private Meetings: The conciliator may hold private meetings with

each of the parties. The conciliator may reality test alternatives and
options and comment about potential outcomes and the strengths and
weaknesses of each party’s case.

5. Concluding Joint Session: There may be a need for additional joint

sessions. The conciliator will assist the parties to narrow the issues in
dispute.
The conciliator facilitates final negotiations and fine‐tuning of the
agreement. Alternatively, the conciliation may need to be adjourned or
terminated.

If the matter has not resolved, the conciliator will discuss with the parties
the next steps to be taken, including the need to obtain any further
material. If appropriate, directions may be issued by the Tribunal.

Guide to conciliation conferences

Information disclosed during the conciliation conference and

discussions held in a conciliation conference are confidential.
The conciliation process is an opportunity for parties to provide
information about the facts of the dispute and to narrow the areas
where there is disagreement. For example, the parties may be able to
come to an agreement on some issues in dispute, but not be able to
resolve all of the issues in dispute.

If the dispute resolves at conciliation, we will only record the outcome

and details of any settlement reached.

If the dispute does not resolve at conciliation, then the information

disclosed during the conciliation will only be used by us in the further
consideration of the dispute where the party disclosing the information
(including any settlement offer or offers) consents.

We may feel that it would be helpful to be able to use information

disclosed about calculations, areas of agreement or new facts as we
continue to handle the dispute. If this is the case, we will ask the party
or parties who disclosed the information if they will allow us to use the
information going forward. If they agree we will do so. If a party does
not agree to information disclosed during the conciliation being used in
the further consideration of the dispute, we will not be able to use that
information when making a recommendation or decision. This may
affect the progress or outcome of your dispute.

Who decides whether or not a conciliation conference

is held?

When your dispute is being considered for conciliation conference, the

conciliator will review the nature of the dispute and whether or not
there is a prospect of settlement. The conciliator may also speak to the
parties in forming this decision. The conciliator then makes a decision
as to whether or not to hold a conciliation conference and advises the
parties accordingly. In some cases, a conciliation conference will be
compulsory.

At any point in the dispute handling process, a consumer or financial

services provider can also request that a conciliation conference be
held.

Conciliator and Role.

A conciliator is trained in conciliation and is independent of both

parties. The conciliator ensures that any agreement or resolution is
reasonable and has been entered into by mutual agreement and free
and informed consent. The conciliator:
 • Conducts the conciliation.
• Has the ability to end the conciliation conference if the process is
being abused by any party.
• Asks questions of the parties, makes suggestions and assists
them in finding a resolution, but is not an advocate for any party,
and does not decide the merits of the case during any
conciliation.
• Assists the parties with any settlement documentation that may
be required.
• Is unable to provide legal advice to either party.
• Provides information concerning alternatives to resolving the
dispute, if the conciliation conference does not resolve all
concerns.

Some Qualities of a good conciliator

• Impartiality: A recurrent theme is the fundamental importance
of impartiality on the part of the conciliation officer in collective
conciliation. This is the basis of representatives' use of for
conciliation. In dealings with parties, it’s felt to be essential for
officers to demonstrate that they did not have any axe to grind
and were there to conciliate, not negotiate and demonstrate in
every way that they not lean to one side or the other in the
dispute.
• Professionalism: It was considered extremely important for a
conciliator to demonstrate a professional attitude towards the
process of conciliation in order to attain the respect of parties
and to inspire confidence. The integrity of the officer is seen to
be a key ingredient in professionalism. This brings
trustworthiness’, respect confidentiality.
• A personable manner .The acceptance of different
personalities and personal qualities are key: certain qualities
which facilitate good communication in the process. Ability to
adapt to different kinds of people and establish a rapport with
them. ability to relate well to both sides, and make each feel
their position is understood.
• Knowledge and competence: Confidence and the ability to
really grasp the issues around the dispute, to tease out what the
agendas of the different parties were and to spot the flaws in
either side’s argument. As well as having the intellectual
equipment to do this, its perceived to be beneficial where
reconcilliators are sufficiently experienced and knowledgeable so
that they were able to draw on facts without constant reference
to other documents and could bring their experience of other
cases to bear on the current dispute.
 • Patience: patience as a virtue in a conciliation officer. It’s
considered very beneficial in the often emotionally charged
atmosphere of a dispute situation to have someone who was
happy just to listen without imposing any time limits. This helps
to remove the pressure on parties and put the situation on a
more even keel.
• Accessibility: As part of their professional approach,
conciliation officers needed to be punctilious about making sure
that they could easily be contacted, either directly or through a
message service. Speedy response to any messages left was
generally regarded as important.

What happens before the conciliation conference?

Once a conciliation conference has been arranged, the conciliator will

contact both parties prior to the scheduled conference to discuss the
issues in dispute and to confirm the agenda for the conference.

How conciliation conference is conducted

Most conciliation conferences will be conducted by teleconference. You

will be able to speak directly to the conciliator and the other party. The
teleconference will be organised by the conciliator. During the
conference, the conciliator will:

• Welcome and introduce the parties to each other.

• Give a brief outline of the conciliator’s role and the ground rules
for the conduct of the conference.
• Request that the parties outline the issues they consider to be in
dispute or summarise the issues for the parties.
• Outline the key issues and confirm an agenda.
• Invite the parties to expand on their concerns and identify the
outcome that they are seeking.
• Assist the parties to explore the issues together and ask
questions of each other to clarify matters.
• Facilitate the discussion of possible resolution options that meet
the needs of both parties.
• The conciliator may also talk privately with each party during the
conference to discuss and clarify any questions or concerns they
wish to raise in private, and to explore possible resolution
options.

Expectations
 • Demonstrate a commitment to resolving the dispute.
• Approach the conciliation with an open mind.
• Be truthful and be prepared to be open in the discussion of the
issues.
• Be at the meeting place or telephone contact point, as arranged,
to ensure the conference starts on time.
• Notify the conciliator if unable to attend the conference so that it
can be rearranged.

Representation

This addresses consideration of any request for representation from

either party. If either of the aggrieved chooses to be represented it’s
usually at own cost.

• A party may also have a family member, partner, and friend or

authorized representative present during the conciliation
conference for support.
• There must be advice of any other person you wish to attend the
conciliation conference and their relationship to you prior to the
conference.

How to prepare for the conciliation conference

• Take time to consider the relevant issues that you wish to

discuss.
• Review your dispute and consider ways to resolve it.
• Be prepared to discuss options for resolution at the conciliation
conference.
• Make sure you have all relevant documents and correspondence
you wish to refer to at hand, and easily identified for discussion.
• Ensure that you have the authority to agree to any terms of
resolution.
• Have with you a pen, paper, glass of water etc. (remember that
the conciliation conference may last for up to two hours).

Types of outcomes are there at conciliation

The outcome of a conciliation conference is determined by the parties.

The following are some examples of outcomes achieved by mutual
agreement in conciliation conferences:

• A full settlement of a claim.

• A settlement that meets some of a claim and both parties are
satisfied with a compromise outcome.
 • An agreement that further information is required before any
consideration of offers takes place.
• An explanation provided and discussed, which resolves the
issues in dispute.
• The provision of further services at a reduced or not cost.
• An agreement to continue or end a professional relationship.
• An apology.
• A resolution or narrowing of some of the issues in dispute.
• In financial difficulty disputes, an agreed timeframe for the sale
of a security property or repayment arrangement.

Ending of Conciliation

When an agreement is reached at conciliation conference, the services

provider involved in the dispute may require that a settlement
document, commonly called a deed of release, is signed by both
parties. The settlement document is usually provided by the financial
services provider, and is reviewed by both parties before signing.

The conciliator is able to discuss and clarify any questions or concerns

in relation to any settlement documentation. However, the conciliator
cannot provide any legal advice to any of the parties in respect of the
terms of the document. It is the parties’ responsibility to satisfy
themselves that the terms of the agreement have been appropriately
recorded in the settlement document. It is open to the parties to seek
their own independent legal advice. Once any settlement documents
have been completed and signed by the parties, the matter is resolved
and we will not consider the dispute further.

What happens if the parties do not reach an

agreement at conciliation?

If a dispute cannot be resolved at a conciliation conference or through

further negotiations, it will usually proceed to the next stage of our
dispute handling process. This may include further investigation of the
dispute by us and a decision may be made in relation to the merits of
the dispute.

Factors affecting the scope for a conciliated outcome

 • Level of entrenchment and willingness to move: The extent
to which there is possibility for movement in each sides position
in a dispute obviously affects whether collective conciliation can
be successful
• Parties’ purpose in using collective conciliation. The
motivations of the parties in using collective conciliation has
implications for the likelihood of a settlement being reached.
there was some variation in the extent to which parties entered
collective conciliation with the wish to achieve a conciliated
outcome. This situation can obviously diminish the opportunity
for a settlement to be reached.
• Extent to which the dispute is rooted in deeper issues
.Some disputes are perceived to be symptoms of much deeper
industrial relations issues within organizations such as a lack of
trust or communication problems between management and the
employees. It can be difficult for the conciliator to produce an
effective agreement in a situation where the real issue causing
problems is not under discussion.
• Unity of the sides involved in the dispute. It’s felt to be
difficult for collective conciliation to produce agreement in
disputes where there are divergent opinions within each side. In
particular, situations where there are differing opinions between
trade union representatives and their members were often
mentioned.
• Openness of the parties with the conciliator. One factor
which might be expected to affect whether it is possible to reach
a settlement in collective conciliation is how open each of the
parties are with the conciliator about their own position. This
issue is explored in the research although there was little
evidence of service users keeping information back from the
conciliator.

Benefits of conciliation

• Enables both parties to a dispute to openly discuss and identify

the relevant issues and move the dispute towards resolution. The
conciliator will facilitate and assist both parties to equally
communicate their concerns and to help generate options for
resolution.
• Conciliation allows you to play an active role in resolving your
case: in effect, it is not the conciliator who decides on a solution,
but the people who participate in the conciliation.
• It also gives you the opportunity to exchange certain
information. This allows you to view and appreciate the situation
 differently and could lead you to reach an agreement with the
representative.
• Even if you are unable to reach such an agreement, conciliation
quite often will allow you to better understand the situation, to
obtain more information, to better understand the rules which
apply to your situation and, finally, to be better prepared for the
hearing.
• It takes less time than court: On average, in some places,
cases take eight weeks to go through the conciliation process.
Some cases are fast-tracked and these can take as little as little
as four weeks to complete.
• It is a confidential process. Respect of disclosed information.
• Conciliation enables negotiated outcomes between the
parties:
Negotiated outcomes are more likely to work in the best
interests of both parties than imposed decisions, especially when
preserving relationships is an important factor in the case.
• It is an opportunity to avoid Court or tribunal: Some cases
benefit from the ruling of a judge. However, many disputes can
be successfully resolved by getting people together to talk about
the case issues and exchange ideas and opinions. The court
process can take a long time and involves expense for both
parties.
• It leads to real social change: Service providers who lose in
court need only make the changes that the court specifies.
Service providers who engage in conciliation often make real and
lasting changes to their policies and practices across all their
activities.

References:

• Resolving Collective Disputes at Work: User perspectives of Acas

collective conciliation services Donna Molloy, Robin Legard &
Jane
• Survey of Collective Conciliation Customers - 2000/2001, Fox. M.,
Advisory, Conciliation and Arbitration Service, Research Findings
No. 2,
• http://en.wikipedia.org/wiki/Mediation
• http://www.wisegeek.com/what-is-a-conciliation.htm
• http://www.conciliation.vic.gov.au/conc/conciliationweb.nsf/pages
/Conciliation+Process?OpenDocument
• http://www.fos.org.au/centric/home_page/resolving_disputes/guid
e_to_conciliation_conferences.jsp
• http://www.taq.gouv.qc.ca/en/conciliation/general-
explanations/what-are-the-benefits