In some cases, particularly when issues in dispute are complex, parties agree to hold a pre-arbitration conference or are directed to do so by the CCMA director, a senior commissioner or a commissioner presiding over the dispute.
The conference’s objective is to allow the parties to exchange documents that they will employ in the arbitration, reach an agreement on the status of such documents, and decide what evidence will be required, what witnesses will be called, and what relief will be sought.
The parties were required to draft and sign a minutes of the pre-arbitration conference and submit it to the presiding commissioner.
The purpose of this minute is to narrow the issues, reduce irrelevant evidence, and centre the proceedings on the actual issues for determination.
In Rule 20 of the Rules for the Conduct of Proceedings before the CCMA, a party is required to participate in a pre-arbitration conference when they are explicitly instructed to do so by the Convening Senior Commissioner, or the Senior Commissioner in charge of their regional region, or the presiding commissioner.
Upon being directed to hold a pre-arbitration conference, the Applicant and the Respondent must attempt to reach a consensus on the following aspects: [as per Rule 20(2)(a) to (r)]:
- (1) Any means by which the dispute may be settled;
- (2) Facts that are agreed between the parties;
- (3) Facts that are in dispute;
- (4) The issues that the Commission is required to decide;
- (5) The precise relief claimed and if compensation is claimed, the amount of the compensation and how it is calculated;
- (6) The sharing and exchange of relevant documents, and the preparation of a bundle of documents in chronological order with each page numbered;
- (7) How documentary evidence is to be dealt with, including any agreement on the status of documents and whether documents or parts of documents, will serve as evidence of what they appear to be;
- (8) Whether evidence on the affidavit will be admitted with or without the right of any party to cross-examine the person who made the affidavit;
- (9) Which party must begin;
- (10) The necessity for any on-the-spot inspection;
- (11) Securing the presence at the Commission of any witness;
- (12) The resolution of any preliminary points that are intended to be taken;
- (13) The exchange of witness statements;
- (14) Expert evidence;
- (15) Any other means by which the proceedings may be shortened;
- (16) An estimate of the time required for the hearing;
- (17) The right of representation; and
- (18) Whether an interpreter is required and, if so, for how long and for which languages.
Following both parties’ agreement and disagreement on the certain aspects as listed above, the parties should record the conference held in writing, note what aspects were agreed upon or disagreed upon, and ensure the information in the minutes is accurate and true by having both parties sign the document.
Before fully signing the minutes of the conference, representatives of Applicants and Respondents should allow their respective clients to review the minutes.
Ensure that all aspects of the minutes in writing that are either disputed or conceded by the client are understood.
The pre-arbitration minutes serve as a binding contract because parties are entitled to rely on what has been agreed or disagreed to there.
It is difficult to convince a Commissioner mid-arbitration that the issue which was agreed to in writing is now in dispute.
To make sure that the parties’ clients are properly informed about the issue, the parties should schedule a pre-arbitration conference with their respective clients. The client should be able to attend the conference in person if he or she is unsure about what will be discussed.
Although underrated, pre-arbitration conferences serve as a critical tool for both Applicants and Respondents.
The purpose of these meetings is to prepare the parties for the arbitration day, so that they will not be met with countless surprises on that day.
A pre-arbitration conference can, in certain circumstances, shorten a full-day arbitration to a half-day arbitration, as both parties know exactly what is expected of them. Furthermore, it gives parties the chance to dispute or concede evidence that will be used.
Does a party have the right to arrange a pre-arbitration conference without being explicitly directed to do so?
Neither the Applicants nor the Respondents are prohibited from holding pre-arbitration conferences without prior notice from the CCMA.
A pre-arbitration conference is permissible under Rule 20(7) of the Rules for the Conduct of Proceedings before the CCMA without parties having to be instructed by the CCMA to do so.
However, unrepresented parties should treat such situations with caution because:
- (1) Lay and unrepresented parties are not always aware of what they are agreeing to or disputing, before arbitration and;
- (2) Lay and unrepresented parties will not understand why the opposing Applicant or Respondent is approaching them privately, without the auspices of the CCMA.
This type of pre-arbitration conference is therefore only advised in cases where both employer and employee are represented by experienced attorneys.
