ANNUAL CONFERENCE CARRIBEA BAY RESORT, KARIBA 3 OCTOBER 2014

Originally, the concept of arbitration was seen as “a primitive form of justice mainly conceived as an institution of peace, the purpose of which was not primarily to ensure the rule of law but rather to maintain harmony between persons who were destined to live together” (R. David, 1895).

Growing dissatisfaction with:  the adversarial nature of traditional litigation methods and outcomes. Litigation produces only winners and losers and often at very high costs financially and emotionally.  Relations are irrevocably damaged

 People are emotionally and financially damaged.  The reputation of lawyers and the justice system decline (Marshall, 1998 page 795)  These were the primary motivators to final alternative method of addressing and resolving conflicts and disputes. ADR with its win win persona appeared to fulfill the hopes of the people.

 ADR includes processes such as:  Arbitration  Mediation  Conciliation  Negotiations

A method of settling conflicts whereby parties submit their dispute to a third party, who is not acting as a state court and who makes a binding decision. The decision normally is not required to be legally based and needs no thorough motivation

A process where a third party (the mediator) with the consent of disputing parties intervenes in a conflict. Its elements are democratic decision making, consensus on both the process and the eventual solution, self determination, voluntariness and confidentiality.

Often used as a synonym of mediation since both processes are presided over by a third party. The Chartered Institute of Arbitrators (CIArb) describes conciliation as a process whereby a Conciliator investigates the facts of the case, attempts to reconcile the opposing parties and asks them to formulate their own proposals for settlement of the case by indicating strong and weak points of their argument and the possible consequences of failure to settle.

A mutual discussion leading to an agreement. Several authors regard it as a conference more than a method of resolving a conflict.

THE CONSTITUTION Section 65 LABOUR RIGHTS  Sec 65(1) Every person has a right to fair and safe Labour practices and standards and to be paid a fair and reasonable wage Section 69 RIGHT TO A FAIR HEARING  69(2) In the determination of civil rights and obligations, every person has a right to a fair, speedy and public hearing within a reasonable time before and independent and impartial court, tribunal or other forum established by law.

 69(3) Every person has the right of access to the courts, or to some other tribunal or forum established by law for the resolution of any dispute.  69(4) Every person has a right, at their own expense, to choose and be represented by a legal practitioner before any court, tribunal or forum.

 Sec 2A PURPOSE OF ACT 1.The purpose of this Act is to advance social justice and democracy in the workplace by- (f) securing the just, effective and expeditious resolution of disputes and unfair labour practices.

 Sec 98 98(2) Subject to this section, the Arbitration Act [CAP 7:15] shall apply to a dispute referred to compulsory arbitration 98(6) The Minister, in consultation with the Senior Judge of the Labour Court and the appropriate advisory councils if any, shall from time to time prepare a list of arbitrators.

98(9) In hearing and determining any dispute an arbitrator shall have the same powers as the Labour Court. 98(10) An appeal on a question of law shall lie to the Labour Court from any decision of an arbitrator appointed in terms of this section.

93(I) A labour officer to whom a dispute or unfair labour practice has been referred, or to whose attention it has come, shall attempt to settle it through conciliation, or if agreed by parties by reference to arbitration. (2) If the dispute or unfair labour practice is settled by conciliation, the Labour Officer shall record the settlement in writing.

(3) If the dispute or unfair labour practice is not settled within thirty days……the Labour Officer shall issue a certificate of no settlement…….. (4) After a Labour Officer has issued a certificate of no settlement, the Labour Officer, upon consulting any Labour Officer senior to him….. (a) shall refer the dispute to compulsory arbitration.

 Section 4 What may be arbitrated  4(I) Any dispute which the parties may have agreed to submit to arbitration.  5(2) Where an enactment provides for the determination of any matter by arbitration, the provisions of that enactment, to the extent that they are inconsistent with this Act, shall prevail.

THE ARBITRATION TRIBUNAL  Legal source?  Is it a Labour Court?  Is it subordinate to the Labour Court?  One man court.  No rules

 Selection  Training  Background  Integrity  Competence

 Execution  Finality  Systematic  Standard

 Flexibility  Confidentiality  Enforceability  Lower costs  Speed  Neutrality of arbitral venue

 Done after workplace hearing  Legal representation at an early stage  Not of any useful purpose  No gain  Putting cart before the horse.

THANK YOU FOR YOUR ATTENTION.