TAKING THE CON OUT OF CONCILIATION 2010 CCMA COMMISSIONERS INDABA “Against all Odds” Ritz Hotel 2 – 4 December 2010 Haroun Docrat.

Slides:



Advertisements
Similar presentations
Integrity and impartiality
Advertisements

Enhancing ethical culture through ethical decision-making Ethics training.
INDUCTION PROGRAMME Employee Eskom
Institute of Public Administration Institute of Public Administration | Lansdowne Road | Dublin 4 | Ireland | Ph | Irish.
Last Topic - National Security Measures taken to ensure national security include Pakistan National Security Council (PNSC) Elements of National Security.
Engineering Ethics* What is engineering ethics?
D ISPUTE R ESOLUTION - A COMPARISON. The legal system presents individuals with a range of ways in which they can resolve disputes. Taking a case to court.
Mark Brennan Director of Liquor Licensing The Return on Investment in Professional Dispute Resolution Thursday 2 June 2011.
COSTS AGREEMENTS AND DISCLOSURES BAR ASSOCIATION CPD SEMINAR 2 AUGUST 2007 By Roger Traves SC.
Litigation and Alternatives for Settling Civil Disputes CHAPTER FIVE.
Street Law Review Chapters 1-6.
EVALUATION OF DISPUTE RESOLUTION METHODS. Strengths of Mediation  Strengths 1) Mediation is often less expensive. Mediation avoids the costs of a trial,
THE DFEH DISPUTE RESOLUTION DIVISION
 Mediation is a dispute resolution process in which, as an alternative to judicial or administrative decision-making process, the parties are assisted.
An Approach to Conciliating Harassment Disputes 2010 CCMA COMMISSIONERS INDABA “Against all Odds” Ritz Hotel 2 – 4 December 2010.
Matthew L. Harvey Office of General Counsel Illinois Commerce Commission.
Reform of Arbitration Law The New Arbitration Ordinance (Chapter 609) # Frank Poon Solicitor General (Acting) Department of Justice Hong Kong SAR.
©2003 Prentice Hall Business Publishing, Auditing and Assurance Services 9/e, Arens/Elder/Beasley Professional Ethics Chapter 4.
DISPUTE RESOLUTION METHODS
Mediation The goal of mediation is not to determine who is write or wrong Purpose is to explore solutions The mediator makes the final decision If no agreement.
Introduction to Mediation. Alternative Dispute Resolution Negotiation Negotiation Arbitration Arbitration Mediation Mediation.
Civil Law Resolutions to disputes between people..
PROFESSIONAL ETHICS CHAPTER 3. ETHICS A SYSTEM OR CODE OF CONDUCT BASED ON UNIVERSAL MORAL DUTIES AND OBLIGATIONS WHICH INDICATE HOW ONE SHOULD BEHAVE.
April 2, 2007 Ontario Human Rights Commission Introduction to the Enhanced Complaints Process (ECP) – Pilot.
ANNUAL CONFERENCE CARRIBEA BAY RESORT, KARIBA 3 OCTOBER 2014.
2008 Commissioners Indaba 19 – 21 st November 2008 Sun City, North West Province HOW to CONDUCT ARBITRATION PROCEEDINGS RANDALL van VOORE.
Neutral Confidentiality DON ADR Program Office NOTE: These slides are just an overview and not intended as legal advice. People seeking legal advice on.
Local Assessment of Code of Conduct Complaints. 2 Background  On 08 May 2008 – the local assessment of Code of Conduct complaints was implemented due.
© 2006 Prentice Hall Ch. 4-1 THE LEGAL ENVIRONMENT OF BUSINESS A Critical Thinking Approach Fourth Edition Nancy K. Kubasek Bartley A. Brennan M. Neil.
Unit 4 Area of Study 1 Booklet 1.3 Answers. Advantages of ADR ADR (mediation, conciliation, arbitration) is a MUCH LESS FORMAL compared to the adversarial.
Peaceful settlement of disputes Chapter 10 Lecture 15 & 16.
The Mediation Alternative Mr Des Ryan AM. The Mediation Alternative What is Mediation? n voluntary ( but see below) n assisted resolution of dispute n.
Mediation October 7, 2013 M.Gauci Law 341/342. October 7, 2013 M.Gauci Law 341/342 Definition  “The intervention in a negotiation or a conflict of an.
FDR – Financial Dispute Resolution Presented by: Stuart Ayres and Derek Pullen Stuart Ayres, Scheme Manager Derek Pullen, Scheme Adjudicator.
Wait Wait, Don’t Give Up How to Break through “No Agreement” Tips and Techniques as well as some Counterintuitive Techniques.
Dispute Resolution in the Workers Compensation Commission 15 October 2011.
INDEPENDENCE OF JUDICIARY Brusels 18th June 2013 Rosario Ruiz DEVCO B.1 – Governance, Democracy, Gender and Human Rights European Commission EuropeAid1.
©2003 Prentice Hall Business Publishing, Auditing and Assurance Services 9/e, Arens/Elder/Beasley Professional Ethics Chapter 4.
Local Assessment of Code of Conduct Complaints. Background  On 08 May 2008 – the local assessment of Code of Conduct complaints was implemented due to.
introducing THE DFEH MEDIATION DIVISION
Solving a civil dispute Methods of dispute resolution Chapter 9.1.
Utah Labor Commission’s Workers’ Compensation Mediation Program Why is the workers’ compensation mediation program successful? What elements contribute.
Industrial Relations Trade Unions can be defined as all organisations which include, among their functions, that of negotiating with employers, with the.
By Group D The Law of Arbitration by Group D The Law of Arbitration.
By Paramita Khisa.  VCAT and court use a range of methods to resolve criminal and civil disputes.  Criminal cases are solved by the judge in courts.
Mediation in Federal Court Kevin F. McDonald United States Magistrate Judge.
Behaving Ethically o Context o Ethical Framework o Core values o Behaving Ethically.
3 - 1 ©2003 Prentice Hall Business Publishing, Essentials of Auditing 1/e, Arens/Elder/Beasley Professional Ethics Chapter 3.
1 The Nature of Ethics Ethics is generally concerned with rules or guidelines for morals and/or socially approved conduct Ethical standards generally apply.
The Ontario Human Rights Commission Complaints Process CLN4U.
ETHICAL ISSUES IN HEALTH AND NURSING PRACTICE CODE OF ETHICS, STANDARDS OF CONDUCT, PERFORMANCE AND ETHICS FOR NURSES AND MIDWIVES.
Topic 4: Evaluating Methods of Dispute Resolution

School Council.
COMMERCIAL MEDIATION IN PE
Professional Ethics.
SIMAD UNIVERSITY Keyd abdirahman salaad.
Implications for your practice
Professional Ethics Chapter 4.
SIMAD UNIVERSITY Keyd abdirahman salaad.
Code of Professional Conduct and Ethics of the Profession
TitLE IV Overview.
Settlement Practitioners Code of Ethics and Conduct
Independence, Integrity And Objectivity
Civil Pretrial Practice
Professional Ethics Chapter 4.
Neutral Confidentiality
Integrity and Ethics Achala Dahal.
(Francesca Cuomo Ulloa, Italy)
LEGAL AID QUALITY INDICATORS AND CONTROL INSTRUMENTS : FINNISH VIEW
Presentation transcript:

TAKING THE CON OUT OF CONCILIATION 2010 CCMA COMMISSIONERS INDABA “Against all Odds” Ritz Hotel 2 – 4 December 2010 Haroun Docrat

Introduction  CCMA places a strong emphasis on conciliation and mediation within the context of our social justice mandate.  Integral role of the CCMA at the first instance of dispute resolution is dependent upon two factors: 1. Role and conduct of Commissioners 2. Value added processes to retain user confidence  This presentation highlights the importance of ethical conduct in processes, by identifying specific forms of unethical conduct and proposes a framework for commissioners to assess their conduct.

Unintended effects of Conciliation and operational imperatives  Rule 16 – Conciliation proceedings may not be disclosed: (1) Private and confidential ; Off the record / without prejudice (2) No person / commissioner may be called upon to give evidence in the commission or any court  Commissioner guides parties to determine the outcome with restriction on representation or observers  Conciliation process by design opens the process to abuse which is exacerbated by a settlement target of 70%  Recourse to review process, challenge agreement or complain is cumbersome or non-existent  Reliance on user complaints to monitor conduct !!!!

Commissioner Conduct and ethics  Minimum set of standards that provides a framework for ethical practice that promotes public confidence  Primary role: facilitate voluntary resolution of disputes with a high emphasis on integrity, honesty and independence  Clearly defined standards envisaged in the Code of Conduct 1.Self-determination – voluntary, un-coerced, explained 2.Impartiality – unbiased, unprejudiced and honest 3.Conflict of interest – declare and /or withdraw ? 4.Confidentiality – unless otherwise agreed to 5.Quality and integrity of the process – promotes settlement

Case Scenarios  Scenario 1: An employer is willing to offer 5 months salary. The applicant will accept 2 months. The commissioner believes that the applicant is guilty of the offence and settles at 2.  Scenario 2: Commissioner tells the applicant that if he doesn’t withdraw the matter, he will be ordered to pay costs of R or more if he loses the case at Arbitration.  Scenario 3: Commissioner in a side caucus offers the employer his business card and indicates that he can “sort out” the company’s IR problems for a reasonable fee.

Case Scenarios (cont)  Scenario 4: Commissioner accuses the employer representative of being a member of a political party that resists institutions such as the CCMA and is therefore unwilling to cooperate and settle the matter.  Scenario 5: A commissioner hugs a former colleague in the reception area. The former colleague appears as the respondent representative in the matter. The applicant had witnessed this. The commissioner fails to disclose or withdraw from the matter.

Commissioner blind-spots  Commissioners are driven by an over-zealous drive to settle at all costs.  Manipulation, coercion or subtle threats to achieve settlement as opposed to exploring viable options  Value judges process in terms of personal prejudice, opinion and character or personalities of parties  Commissioner command of the process does not conform to true conciliation model and is out of sync with real role as a commissioner

Ethics monitor – self test  Was your conduct in line with the Commissioner’s Code of Conduct?  Did your conduct violate any of the CCMA’s values – Trust, Integrity, Respect, Accountability, Diversity, Excellence  Did your conduct serve the interest of both parties?  Are you at ease with the settlement or outcome achieved?  If you were one of the parties would you have been satisfied with the Commissioner’s conduct?  Is your conscience at ease with your conduct?  Could you disclose and justify your conduct…to your peers, your CSC, a Judge, your family or society as a whole?

Concluding remarks  Reputation and stature of the CCMA in the labour market is primarily based on commissioner interaction with parties, at the first instance of conciliation.  CCMA has an obligation to deliver on its social justice mandate with far reaching socio-economic consequences  Our endeavour to derive a framework essentially highlights the importance of ethical conduct. Our journey should be guided and influenced by the quote below: “Earn your success based on service to others, not at the expense of others.” Thank you!