A Commissioner may conduct an arbitration in a manner that he/she considers appropriate to determine the dispute fairly and quickly but must deal with the substantial merits of the dispute with the minimum of legal formalities.
Preparation for arbitration should be linked to a consideration of the issues in dispute as contained in the CCMA 7.11 referral document. However, the information contained in the referral document may not clearly identify the actual issues in dispute.
Rule 20 of the CCMA rules empower the CCMA to direct the parties to a dispute to convene a pre-arbitration conference. Only the Convening Senior Commissioner, the Senior Commissioner in charge of a regional CCMA office or the presiding Commissioner in charge of a matter may direct the parties to hold the conference in terms of rule 20.
In a pre-arbitration conference, the parties must attempt to agree on the issues specified in Rule 20(3) and file a minute signed by both parties setting out, among other things, the facts on which the parties agree or disagree, the issues that the Commissioner is required to determine. The pre-arbitration minutes should thus give information on the nature of the dispute, what is admitted and denied, and the evidence intended to be led.
In terms of Rule 20(2), the pre-arbitration conference must be convened at least fourteen (14) days prior to the scheduled arbitration date. Rule 20(5) requires that the referring party must ensure that the pre-arbitration minutes are delivered to the appointed Commissioner within seven (7) days of the conference being held.
In practice, in the presence of the parties, the Commissioner will direct that they convene the conference at a time convenient to both parties. In this regard, parties are given discretionary powers to determine the place and time of the conference and who should attend. The matter will then be adjourned and rescheduled to a new date determined by the CCMA, which would give parties sufficient time to conclude the Rule 20 process.
Should parties not comply with the Commissioner’s directive regarding the conference, he may continue with the arbitration. However, any non-compliance may be considered when considering costs at the conclusion of the arbitration hearing.
There is nothing preventing the parties from agreeing to conclude a pre-arbitration conference independently. However, a party receiving such a request is not compelled to reply thereto.
There are significant benefits for the parties to conduct the pre-arbitration conference as the process allows the parties to agree on the most efficient way to conclude the dispute. The issues in dispute can be reduced to a minimum which will minimise wasted time spent completing the process.
Article by: Marco Horak
Dispute Resolution Official – Cape Town