7. conclusion & quo vadis


7. conclusion & quo vadis

4. AUSTRALIAN CONCILIATIONPROCESS• Conciliation conducted by phone, CCTV orotherwise• Confidentiality and without t prejudicenature of the process

5. OBSERVATIONS ON THEAUSTRALIAN PROCESS• Overall structure is different to ours Dealt with by fulltime professional staff of theTribunal not involved in the determination(review) process which is conducted by apanel of part-time ti professionals;• Consequences of this are two-fold:a) expert knowledge and skills in the areab) strong “bamboo curtain” betweenconciliators and deciders

AUSTRALIAN INTERNALPROCESS• Conciliators put files and material togetherfor the deciders; On the plus side – efficiency On the downside – suspicion andperception of bias

AUSTRALIAN MODEL – PRE-SCREENING/GATE-KEEPING• There is a port of entry barrier, but aninvitation to the complainant to persuadethat the Tribunal has jurisdiction andshould entertain t the complaint.

AUSTRALIAN MODEL contd.• A detailed explanation of the process ofconciliation is provided which is extremelyhelpful.

AUSTRALIAN MODEL contd• Representation at conciliation:‣Lawyers y or not?

6. ANALYSIS & DISCUSSION6.1 The Australian model closelyresembles the SA model of LabourDispute Resolution (e.g. the CCMA)62 6.2 Our law in many other spheres requirescompulsory mediation or conciliationprior to adjudication (e.g. land claimdisputes, Family Advocate, disputesbetween organs of state, competitionlaw disputes and many others)

7. CONCLUSION & QUO VADIS7.1 Mediation or conciliation?I recommend conciliation as thepreferred process

7. CONCLUSION & QUO VADIScontd7.2 Selection of matters for referral to conciliation:• Pre-screening/gate-keeping This is essential – some examples of matters currentlybeing referred for conciliation which should not beentertained :• Claims for RA benefits prior to 55 years• Claims for lump sum payments from pension/RA Fundexceeding the statutory 1/3 rd limit• Claims for benefits which the Fund can prove have been paid• Complaints which are time-barred• Matters which properly reside under the LTI Ombud or FAISOmbud• Complaints which are not cognisable by law or by the rules• “No-brainers”

7. CONCLUSION & QUO VADIScontd7.3 Conciliators must be familiar withpension law and must be skilled andtrained in the process of conciliation;7.4 In-house or outsourced conciliation?i • Recommend in-house, especially giventhe quantum of disputes and disparity it ofmeans and resources of disputing parties

7. CONCLUSION & QUO VADIScont7.5 Conduct of conciliation proceedings• Follow the Australian model guided by ourown indigenous experience• Phone and video conferencing

7. CONCLUSION AND QUOVADIS cont7.6 Representation?Lawyers – yay or nay

7. CONCLUSION & QUO VADIScontd7.7 Dispute of rights/interest

7. CONCLUSION & QUO VADIScontd7.8 Should conciliation be compulsory•Yes, with provisos …..

7. CONCLUSION & QUO VADIScontd7.9 The cost of ADR• Who is to bear this?

8. FINAL WORDS8.1 The jury is out as to what the current Actallows;82 8.2 Cure by amendment8.3 Vision of the Adjudicator’s office – expand toinclude facilitating ti resolution of disputesthrough conciliation prior to adjudication.Con-arbists have a definite role to play inthis area!Thank you!

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