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Conciliation is often the first real engagement that employers have with a dispute once it has been referred to the Commission for Conciliation, Mediation and Arbitration (CCMA) or relevant Bargaining Council.

Despite its informal nature, it remains one of the most important stages in the dispute resolution process and, if approached correctly, can save both time and costs.

This guide sets out a practical overview of what to expect and how to approach conciliation effectively.

What is conciliation?

Conciliation is a process facilitated by a CCMA or relevant Bargaining Council commissioner, aimed at assisting the parties to resolve a dispute by agreement. It is a compulsory step in most disputes, but importantly, the outcome remains voluntary and no party can be forced to settle.

The process is conducted on a without prejudice basis, meaning that discussions held during conciliation cannot be used later in arbitration or court proceedings.

From a practical perspective, conciliation should be seen as a strategic opportunity to resolve the matter early, rather than as a procedural hurdle before arbitration.

How the Process Works

The conciliation process is initiated when an employee refers a dispute to the CCMA or the relevant Bargaining Council by completing and submitting the prescribed Labour Relations Act (LRA) 7.11 referral form. Once the referral has been received, the CCMA or Bargaining Council will issue a formal notice of set down, informing both parties of the date, time, and venue (or platform) for the conciliation hearing.

It is important for employers to be aware that strict timeframes apply to the referral of disputes. In the case of unfair dismissal disputes, the referral must generally be made within 30 days, while unfair labour practice disputes must be referred within 90 days. Certain disputes, such as those relating to discrimination, may have longer prescribed periods. Where a dispute is referred outside of these timeframes, the referring party is required to apply for condonation, providing reasons for the delay. This is often the first preliminary issue that may arise at conciliation.

Conciliation hearings themselves are informal in nature and are designed to facilitate discussion rather than to determine the merits of the case. These hearings may take place in person at the CCMA or Bargaining Council, or alternatively via telephonic or online platforms, depending on the circumstances.

At the commencement of the proceedings, the commissioner will typically introduce themselves, explain the purpose of conciliation, and clarify their role as an impartial facilitator. Each party is then afforded an opportunity to briefly outline their version of events. This is not a detailed evidentiary presentation, but rather an opportunity to set out the essence of the dispute.

Following this, the commissioner will guide the parties through a process of discussion and negotiation, with the aim of identifying potential areas of agreement. It is common for commissioners to engage with the parties both jointly and separately, a process often referred to as ‘caucusing’ to explore possible settlement options more freely. During this process, the commissioner may make suggestions, assist in narrowing the issues, and encourage practical solutions, but will not impose any outcome on the parties.

Importantly, the commissioner does not decide the merits of the case.

When Conciliation and Arbitration Fall on the Same Day

Employers should be mindful that certain disputes may be set down as a conciliation-arbitration (con-arb) process. In these matters, conciliation and arbitration are scheduled to take place on the same day, meaning that if the dispute is not resolved at conciliation, it will immediately proceed to arbitration without a separate set down.

This has important practical implications. While a con-arb can be efficient, it also means that parties must be fully prepared to proceed with arbitration on the same day including having witnesses available and documentation ready even though the matter may still settle at conciliation.

Importantly, employers do have the right to object to the con-arb process in certain disputes, particularly in cases involving dismissals for misconduct or incapacity. Such an objection must be made timeously, typically at least seven days prior to the scheduled hearing, failing which the matter may proceed as a con-arb by default.

From a strategic perspective, the decision whether to object should be carefully considered. Where further preparation is required, witnesses are not readily available, or the matter is complex, an objection may be appropriate to ensure that the arbitration is properly prepared for. Conversely, in more straightforward matters, allowing the con-arb process to proceed may result in a quicker finalisation of the dispute.

Employers are therefore encouraged to assess each matter on its own merits and ensure that a conscious decision is taken regarding con-arb, rather than allowing the process to proceed by default.

Explore our labour law solutions for CCMA and Bargaining Council disputes.

Where Conciliation Can Lead

At the conclusion of conciliation, there are generally three possible outcomes:

• In instances where the parties reach a settlement, the agreement is reduced to writing and signed by both parties. This is final and binding, and failure to comply with its terms may result in enforcement proceedings.
• If the dispute remains unresolved, the commissioner will issue a certificate of non-resolution, which enables the referring party to proceed to the next stage, typically arbitration or, depending on the nature of the dispute, adjudication in the Labour Court.
• An often overlooked outcome is the withdrawal of the dispute. This may occur where the referring party elects not to proceed, whether due to a reassessment of the merits, a breakdown in interest, or resolution of the issue outside of the formal process. A withdrawal effectively brings the conciliation process to an end, although it is important to note that, depending on the circumstances, the referring party may still seek to re-refer the matter, subject to the applicable time limits and condonation requirements.

From a practical perspective, employers should be mindful of all three outcomes when approaching conciliation, as each carry different strategic and legal implications.

Practical Preparation for Employers

The outcome of conciliation is often determined long before the parties even enter the room. Proper preparation remains the single most important factor in achieving a favourable and commercially sensible resolution.

Employers must begin by developing a clear and accurate understanding of the dispute. This includes not only identifying the nature of the dispute – whether it relates to dismissal, an unfair labour practice, or discrimination – but also properly grasping the factual background that gave rise to it.

Equally important is an honest assessment of the risks if the matter proceeds to arbitration. Employers who attend conciliation without a proper understanding of their own case often find themselves making poor or reactive settlement decisions, and although conciliation is informal in nature, lack of preparation would be ill advised. Employers should ensure that all relevant documentation is readily available, including contracts of employment, disciplinary records, and any correspondence that may support their version of events. While there is no requirement to present a full evidentiary case at this stage, an employer must be able to substantiate its version if challenged, thereby bolstering negotiating power. A lack of documentation often weakens credibility during discussions.

One of the most common pitfalls in conciliation is the absence of a clear mandate. Representatives frequently attend proceedings without having established whether the employer is willing to settle, on which terms, and within which parameters. This lack of direction renders meaningful negotiation difficult and often results in missed opportunities to resolve the dispute. A defined settlement range and clear instructions are essential to effective participation.

It is also important to approach conciliation with the correct mindset. The process is not designed to determine a winner, but rather to manage risk and explore resolution. Employers who adopt a rigid or adversarial stance often overlook practical solutions that could bring the matter to an efficient close. A more pragmatic approach – one that considers commercial realities, the cost implications of arbitration, and the uncertainty of outcomes – will generally yield better results.

Making the Most of the Process

Professional conduct remains equally important throughout the process. Even in circumstances where the dispute is emotionally charged, maintaining a calm, objective, and solution-driven approach can significantly influence the tone of the proceedings. Commissioners are more likely to engage constructively where parties demonstrate a willingness to resolve the matter, rather than escalate it.

From a strategic perspective, conciliation should be viewed as the ideal stage at which to finalise disputes. Once a matter proceeds to arbitration, the process becomes more formal, time-intensive, and costly. The outcome is no longer within the parties’ control but rests with the commissioner. For this reason, conciliation presents a valuable opportunity to test the strength of the employee’s case, assess credibility, and explore settlement options at an early stage – advantages that are lost entirely once the matter proceeds to a formal hearing.

Why Proactive Conciliation Pays Off

In many instances, early resolution at conciliation can prevent months of preparation, multiple hearing days, adversarial exchanges, financial and operational risks, as well as ongoing operational disruption associated with arbitration. It allows employers to regain focus on business operations rather than being tied up in lengthy dispute proceedings.

Ultimately, employers who approach conciliation proactively and practically place themselves in the best position to resolve disputes swiftly, cost-effectively, and with minimal disruption.