DEFINITION
A method of resolving disputes without going to trial, in which a neutral third party, called a conciliator, restores damaged relationships between disputing parties by bringing them together, clarifying perceptions, and pointing out misperceptions.
THE PROCESS
The conciliator helps people in a dispute to identify disputed issues, develop options, consider alternatives, and try to reach an agreement.
CONCILIATOR ACTIONS
Lowers tensions, improves communication, interprets issues, and assists parties in finding a mutually acceptable outcome. The conciliator may meet with parties both separately and together.
NATURE OF PROCEEDINGS
- It is a voluntary proceeding.
- The process is flexible, allowing parties to define the time and structure.
- Proceedings are conducted privately.
- Proceedings are interest-based; when proposing a settlement, the conciliator considers parties’ legal positions, as well as their commercial, financial, and/or personal interests.
CONCILIATOR’S ROLE AND EXPERTISE
- A conciliator may have professional expertise in the subject matter in dispute.
- Will generally provide advice about the issues and options for resolution.
- Will not make a judgment or decision about the dispute.
- Facilitates communication aiming for a settlement or resolution, similar to mediation.
- Unlike mediation, the conciliator may offer his/her opinion as to the merits of each argument and recommend a fair outcome.
GOAL
The function is to aid the parties in a neutral and facilitative way. It is a facilitative method of dispute resolution in which positive relationships are built.
INTENTION
To correct perceptions, reduce fears, and improve communication to guide parties into conflict-free negotiations and bargaining.
SUCCESS
Successful conciliation reduces tension, opens channels of communication, and facilitates continued negotiations.
APPLICATION
Frequently used to restore parties to a pre-dispute status quo, after which other ADR techniques may be applied.
IRELAND LAW REFORM COMMISSION (2010)
Defined conciliation as an advisory, consensual and confidential process, in which parties select a neutral and independent third party to assist them in reaching a mutually acceptable outcome.
2002 UNCITRAL Model Law on International Commercial Conciliation
A process (whether called conciliation, mediation, or similar) whereby parties request a third person(s) to assist them in reaching an amicable settlement. The conciliator does not have the authority to impose upon the parties a solution.
Does not distinguish conciliation from mediation. However, Section 4 states the conciliator may, at any stage, make proposals for a settlement of the dispute, thus allowing the conciliator to break an impasse by suggesting solutions.
KENYA CONSTITUTION
- Article 159(2)(c) recognizes the application of alternative methods of dispute resolution, including reconciliation, mediation, arbitration, and traditional mechanisms.
- Article 252 grants Constitutional Commissions power necessary for conciliation, mediation, and negotiation in the discharge of their functions.
USAGE IN KENYA
Mainly used for labour disputes; rarely used for other disputes.
INTERNATIONAL LABOUR ORGANISATION (ILO)
Kenya has ratified 50 ILO conventions (37 in force). Among the ratified fundamental conventions is the 1949 Right to Organize and Collective Bargaining instrument, which includes provisions relating to labour dispute settlement machinery.
Main Principles Set Out in ILO Instruments:
- Procedures should assist parties to find a solution themselves.
- Public service disputes should be settled through negotiation or independent and impartial machinery (mediation, conciliation, arbitration).
- Governments should make available voluntary conciliation machinery, which is free of charge and expeditious.
- Agreements reached during conciliation should be drawn up in writing and accorded the same status as collective agreements.
LEGAL FRAMEWORK UNDER THE LABOUR RELATIONS ACT (LRA), 2007(KENYA)
Purpose:
- To give effect to Kenya’s obligations under International Labour Organization (ILO) instruments on peaceful settlement of labour disputes.
Definition (Trade Dispute):
- Any dispute, difference, or apprehended dispute between employers and employees, employers and trade unions, or employers’ organizations and trade unions concerning employment matters such as dismissal, redundancy, or recognition of a union.
Statutory Provisions:
- Section 58(a): Parties may conclude a collective agreement providing for conciliation by an independent and impartial conciliator.
- Section 65: The Minister must appoint a conciliator within 21 days of a dispute being reported under section 62.
- Section 66: Conciliators may be public officers, members from an approved panel, or persons from the conciliation and mediation commission.
- Section 67: Conciliator’s powers include mediating, conducting fact-finding, and making settlement proposals to the parties for settling the dispute. They may summon and question any person or require documents and evidence.
- Section 68: Settlement terms must be written and signed by all parties and the conciliator. A signed agreement becomes binding and must be lodged with the Minister/Cabinet Secretary.
Binding Nature and Case Law:
- A conciliation agreement is binding if proper procedure is followed.
- Haresh Dayaram Thakur v State of Maharashtra & Ors (Supreme Court of India): Where a statute prescribes a procedure, it must be strictly followed.
Labour Institutions Act, Section 12(9):
- The Industrial Court may refuse to determine a dispute (except appeals/reviews) if conciliation was not attempted—discretionary power intended to promote conciliation.
Framework Characteristics:
- Conciliation is a comprehensive, state-financed, time-bound, cost-effective, and expeditious dispute resolution mechanism compared to court litigation.
Mandatory Referral – Jurisdictional Issue:
- Referral of disputes to the Minister and appointment of a conciliator is not mandatory and does not oust the Employment and Labour Relations Court’s jurisdiction.
- Karen Blixen Camp Limited v Kenya Hotels and Allied Workers Union (2018) eKLR: Section 62(1) is permissive, not mandatory.
Consequences and Current Practice:
- Non-mandatory referral leads to direct filing of disputes in court, contributing to backlog.
- Courts increasingly invoke Article 159 (alternative dispute resolution) to encourage mediation and conciliation.
- Recommendation: Make conciliation mandatory at first instance to ease court congestion.
PROCEDURE OF CONCILIATION (NON-TRADE DISPUTES)
- Parties agree to resolve the dispute by conciliation.
- Parties mutually appoint their conciliator.
- Conciliator requests each party to provide a written statement about the facts of the case.
- Parties are also requested to send the written statement to each other.
- Initial Meeting: Conciliator explains the process, role, and expectations. Parties and conciliator agree on the structure (or communicated in writing).
6.The conciliator can choose to meet with the parties collectively or separately. - Proceedings are tailored to suit the case’s specific circumstances.
- Conciliator facilitates negotiations to reach a settlement.
- Conciliator can suggest a solution, usually after parties state facts, point out issues, and offer options.
- Parties have the option to accept or reject the conciliator’s suggestion/proposal.
- Settlement Reached: Reduced to writing, signed by the parties and the conciliator. It becomes binding like any contract.
- Settlement Not Reached: Conciliator prepares a report, gives it to the parties, who are then at liberty to pursue other methods.
PROCEDURE OF CONCILIATION (TRADE DISPUTES - PART VII LRA)
- Reporting:
- Trade dispute is reported to the Cabinet Secretary (CS) in charge of labour in the prescribed form. - Service:
- Complainant serves the respondent and all interested parties and files an affidavit of service. - Replying Statement:
- Respondent files within 14 days. Interested parties may also file statements of interest within this period. - Appointment:
- CS shall appoint the conciliator/conciliation committee within 21 days of the referral and notify all parties. - Non-Appointment:
- If the CS does not appoint, he or she informs the parties and gives reasons. - Appeal:
- A party aggrieved by the CS’s decision may refer the matter to the Employment and Labour Relations Court (ELRC) under a certificate of urgency. - Resolution Period:
- The conciliator is required to resolve the matter within 30 days. - Activities During 30 Days:
- Initial meeting, negotiations, proposals by the conciliator. Powers include mediation, fact-finding, and making recommendations/proposals. Powers also include summoning and questioning persons, and summoning documents. - Settlement:
- Terms must be: (a) recorded in writing; and (b) signed by the parties and the conciliator. - Lodging:
- A signed copy is lodged with the Cabinet Secretary as soon as practicable. - Unresolved:
- A trade dispute is deemed unresolved if: (a) the conciliator issues a certificate of non-resolution; OR (b) the 30-day period (or agreed longer period) expires. - Next Step:
- If unresolved, a party may refer it to the ELRC.
DISTINCTION BETWEEN CONCILIATION AND MEDIATION
- Similarity: Conciliation is similar to mediation.
- Mediator Role: Facilitates negotiation. Asks questions, gives prompts, sets an agenda, manages the conversation, and gives legal information (but not advice or decisions).
- Conciliator Role: Facilitates negotiation; evaluates the issues and options; and offers his/her proposal on the best way to resolve the dispute. The conciliator tries to persuade parties to reach an agreement based on their evaluations and makes appropriate interventions.
- Enforceability: Mediation agreement is enforceable by law. Conciliation agreement is enforceable as a decree of the court.
DISTINCTION BETWEEN CONCILIATION AND ARBITRATION
- Decision Making:
- Arbitration: The neutral third party makes the decision (the award is binding).
- Conciliation: The neutral third party assists the parties in reaching a mutually beneficial solution (the agreement is not binding unless written and signed by the parties and the conciliator).
- Commencement:
- Arbitration: Commences based on a written arbitration agreement.
- Conciliation: Can commence without a written agreement.
- Arbitration: Commences based on a written arbitration agreement.
- Formality/Court Intervention:
- Conciliation is less formal.
- Court intervention is not limited in conciliation.
