Mediation and conciliation in collective labor conflicts in South Africa

Abstract

In South Africa, strikes resulting from failed collective bargaining processes are often protracted and regularly involve recourse by striking workers to unlawful means of pursuing their objectives (including non-compliance with agreed or statutory strike procedures, damage to property and/or physical violence against so-called ‘scabs’, i.e., workers who continuing working during the strike). The generally very effective dispute resolution processes that have been available for several decades through both private and statutory dispute resolution bodies do not seem to have managed to lower the high level of hostility and adversarialism. In this environment the need for early dispute resolution processes (‘EDR’) that allow for dispute resolution to be moved ‘upstream’ has become acute. While EDR was recently placed high on the strategic agenda of the primary statutory resolution body—the Commission for Conciliation, Mediation and Arbitration—there is little evidence of EDR being promoted actively by other key stakeholders, including providers of private dispute resolution services.