Preparing for Arbitration: What You Need to Know (Quick Prep)

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It is preferable for a pre-arbitration conference to be held attended by all parties to the dispute, particularly where the dispute is complex, following the provisions of CCMA Rule The purpose of a pre-arbitration conference is to streamline the arbitration hearing. It also assists parties to ensure that they are properly prepared for the arbitration.

At the conclusion of the pre-arbitration conference draw up and sign a minute and submit the minute to the appointed commissioner at least seven days prior to the arbitration hearing. Do not request the CCMA to subpoena witnesses unless absolutely necessary. In arbitration proceedings a party to the dispute may appear in person or be represented only by- a a legal practitioner; b a director or employee of the party; or c any member, office-bearer or official of that party's registered trade union or registered employers' organisation.

In the case of dismissals for reasons related to conduct or capacity, bear in mind S of the Act:. S 4 read with S of the Act explicitly states who may appear or be represented in arbitration proceedings. A commissioner has no discretion to permit any person other than those listed in that section to appear or act as a representative even if the other parties have no objection. Advocates are required by the commissioner to place the name of the briefing firm of attorneys on record.

An advocate may either be briefed with a brief or verbally. If the arbitrator proceeds, with or without the respondent, the respondent will still be bound by the arbitration award.

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An arbitration award must be issued within fourteen days of the conclusion of the arbitration proceedings and served on both parties. The arbitration award usually covers the following areas: details of hearing and representation, issues to be decided, background to the issue, survey of evidence and arguments, analysis of evidence and arguments, and the award. An arbitration award is final and binding. Should the respondent fail to follow the award, the applicant can refer the matter to the Labour Court for the award to be made an order of the court.

Arbitration fee In cases of dismissal relating to conduct or capacity where a commissioner finds that a dismissal is procedurally unfair, in terms of S 2 of the Act the commissioner may charge an employer an arbitration fee. Cost order for vexatious or frivolous behaviour In terms of S 10 of the Act a commissioner may include an order for costs in the arbitration award if a party or person who represented the party in the proceedings acted in a vexatious or frivolous manner:.

Meaning of 'costs' The term 'costs' refers to an order by a CCMA commissioner for parties to pay the other party or parties for certain expenses incurred in having a dispute resolved through arbitration. Cost orders only allow certain expenses incurred in the arbitration to be recovered, such as legal costs incurred and certain disbursements incurred, such as subsistence and travelling costs of witnesses. Once the bill of costs has been taxed the amount of money allowed by the taxing officer can be claimed from the other party.

CCMA Rule 19 stipulates the required processes for applications for condonation, jurisdictional disputes, variation and rescission applications, and other interlocutory applications for example, change of citation and joinder of parties.

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Rule 19 provides that any application must be in writing and served on all parties to the dispute and the CCMA. In terms of Rule Review: S Where a party alleges a defect with a commissioner's ruling or award, the party's remedy is to review the decision in the Labour Court in terms of S of the Act.

In terms of S of the Act any party who alleges a defect in the arbitration proceedings may apply to the Labour Court to set aside the award within six weeks of the award being served.

It is important to note that the review is not an appeal, is not on merit and is only related to the commissioner's conduct. Variation or rescission: S A party may apply for variation or rescission of a ruling or an arbitration award in terms of S of the Act.

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In terms of S, a commissioner acting on their own accord or on application from any affected party, may vary or rescind an arbitration award -. The application must comply with the provisions of the CCMA Rule it must include a notice of motion supported by affidavit and be served on the applicant. The application must be brought within 10 days of the date on which the applicant became aware of- a the arbitration award or ruling; or b a mistake common to the parties to the proceedings.

Limited application of S There are a limited range of circumstances where S can be applied. If a ruling or award was made, for example, arising out of a process where both parties were present, it is unlikely that a rescission can be considered. Recourse in this circumstance would be by application of S of the Act: a review of the award or ruling to the Labour court.

Good cause in this case means if the commissioner who made the award is unavailable through illness, death, or has resigned, or has been transferred or is doing duty elsewhere. All decisions constitute a ruling All decisions made by a commissioner during a process constitute a ruling. In terms of the definition of 'day' in the CCMA Rules a 'day' is calculated as a working day and is defined as:.

A 'day' in the Act means a calendar day, as opposed to a working day. It is important to bear this in mind when calculating the day referral period for conciliation and the day referral period for arbitration. The Act does not define 'day' which means that one has to refer to S4 of the Interpretation Act of In terms of S4 of this Act all days including weekends and public holidays are counted, and days are counted by excluding the first day and including the last day. The following is a complete list of possible processes that disputes would follow where conciliation has failed:.

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Southern Sun: Maharani: Durban. Health and Safety Representative Course. Problem-solving and Decision-making Skills. Managerial and Leadership Skills. Our Clients. S 3 of the Act outlines the conciliation process, stipulating that: The commissioner must determine a process to attempt to resolve the dispute, which may include- a mediating the dispute; b conducting a fact-finding exercise; and c making a recommendation to the parties, which may be in the form of an advisory arbitration award.

CCMA Rule 7. If the referring party later decides to pursue the matter, the referring party will have to refer the dispute again under the same case number and if necessary, apply for condonation explaining … Determination of the nature of the dispute In the eventuality of any disagreement regarding the nature of the dispute, the conciliating commissioner may decide upon the nature of the dispute.

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S of the Act stipulates that- 1 The commissioner may conduct the arbitration in a manner that the commissioner considers appropriate in order to determine the dispute fairly and quickly, but must deal with the substantial merits of the dispute with the minimum of legal formalities.

The rule differences are based on the complexity of the case and amount in dispute. If the dispute is based on a contract, read the contract to see what specifically it lays out in terms of rules and presenting your case. Arbitrations typically start with an initial conference call with the arbitrator, or an Arbitration Management Conference AMC call.

This is a great time to discuss the use of demonstratives and the use of e-briefs, exhibit submissions, etc. For example, some former federal judges are very familiar with electronic document storage and are quite comfortable handling submissions electronically. Each arbitrator will have their own preferences and being prepared for the AMC is critical.

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Arbitrators really appreciate it when the two parties work together. For example, with voluminous briefs, the parties can work together on developing a list of exhibits and putting them in an electronic format for the arbitrator s to easily find.

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If arbitrator s have to go back and forth between each set of exhibits, it can be challenging, especially when you are talking about hundreds or thousands of exhibits. One arbitrator I spoke with talked about a case where one of the parties put all of their documents on an iPad and gave one to each of the arbitrators and opposing counsel. And yes, the iPads were returned at the conclusion of the case. Is there WiFi? How big is the room? Many firms hire trial techs and graphic firms to help with presentations.

Sought-after arbitrators have their own scheduling issues, but they may well be worth waiting for. And remember even the process of selecting an arbitrator or arbitration panel can take time — weeks if not months in the case of a three-person panel and particularly where the two party-proposed arbitrators pick the third. Some arbitrators follow their judicial counterparts and enforce strict time limits on proceedings, either on their own or by agreement among the parties.

That raises additional questions and tactical decisions. If the latter, make sure the written evidence they submit to the arbitrator is clear, compelling and perhaps deals directly with every possible argument from the other side.

The Secret to Successful Cross-Examination

Your expert will not get a second chance to convince the arbitrator, except under the pressure of cross-examination. That finality is most often tested in cases where the arbitrator disallowed or refused to hear relevant evidence that one party argues should have been allowed.

The Best Strategies to Present Your Case In Arbitration

The prospect of appeal on such grounds leads many arbitrators to give the parties wide latitude to present their cases. Experts may be allowed to cover more ground than under the strict rules of evidence in a court setting, and in our experience arbitrators may be more inclined than judges to question witnesses directly presumably to test their own thinking on the various issues and canvass the real business perspectives that ought to be brought to bear in a fair and equitable decision.

Finality and privacy may be interrelated issues. As noted earlier, both parties may be attracted to an arbitral setting to ensure finality and privacy, not only over the ultimate decision and dollars that flow from it, but also over their own business practices, conduct, documents and other evidence that may attract unwanted attention from various other parties — the press, competitors, tax, antitrust and other regulatory authorities, to name a few.

Selecting the arbitrator. The process for selecting a presiding arbitrator is often defined in the arbitration clause. Typically, the two sides specify qualifications, or work it out in pre-arbitration negotiations. The choice of an arbitrator depends on the nature of the dispute.


If it only involves an accounting question, such as the proper application of accounting principles as they may apply in the calculation of working capital on the close of a transaction, an arbitrator with accounting or finance experience in that particular industry might be best. Valuation experts frequently serve in disputes over the value of a business and financial losses arising from any number of contract breaches and tort matters, including, for example, those arising from intellectual property infringements.

If the dispute is likely to involve legal and procedural questions and decisions, a lawyer might be the best choice either as sole arbitrator or for at least one position on a panel. Similarly, retired judges know how to run a hearing process efficiently and can obviously deal with not only the legal issues assuming familiarity with the governing law of the relevant jurisdiction , but also other non-legal determinations that must be made.

Non-lawyer arbitrators may have to rely on counsel for the veracity of their respective legal submissions.