Understanding the Advantages and Disadvantages of Conciliation

Conciliation is a confidential, without-prejudice dispute resolution process in which an independent commissioner helps the parties negotiate their own settlement — in South Africa it is the compulsory first step for most labour disputes referred to the Commission for Conciliation, Mediation and Arbitration (CCMA) or a bargaining council under the Labour Relations Act 66 of 1995. Its main advantages are that it costs nothing at the CCMA, is normally convened within 30 days of referral, keeps the dispute private, and leaves the outcome entirely in the parties’ hands. Its main disadvantages are that the commissioner cannot impose a decision, no evidence is tested under oath, and legal practitioners are generally not entitled to represent a party in the conciliation itself. If conciliation fails, the commissioner issues a certificate that the dispute remains unresolved, which is the gateway to arbitration or the Labour Court rather than the end of the matter.

What Conciliation Actually Is (and Where It Sits in South African Law)

Conciliation is a facilitated negotiation. An independent commissioner sits with the parties, hears each side’s position, and works with them — both jointly and in private caucus — to find terms they can both accept. The commissioner has no power to decide the dispute: the role is to help the parties reach their own agreement, not to impose one.

Statutorily, conciliation is governed by the Labour Relations Act 66 of 1995 and administered by the CCMA, a body established under that Act. Where a bargaining council has jurisdiction over a sector and the parties covered by it, disputes in that sector go to that council rather than to the CCMA.

For most labour disputes conciliation is compulsory, not optional. A party cannot skip conciliation and go straight to arbitration or the Labour Court, because the certificate of outcome issued at the end of conciliation is a jurisdictional prerequisite for the next step. Conciliation also appears outside labour law in South Africa — in the Rental Housing Tribunal and various consumer forums, for example — but the CCMA labour context is what most searchers mean, and it is the focus of this article.

How a Conciliation Referral Works, Step by Step

1. Identify the correct forum first. If a bargaining council has jurisdiction over the sector and the parties, the referral goes there, not to the CCMA.
2. Refer the dispute on the CCMA’s prescribed referral form and serve a copy on the other party. The referral must state the nature of the dispute and the outcome sought.
3. Observe the time limits. Dismissal disputes must be referred within 30 days of the date of dismissal, and unfair labour practice disputes within 90 days of the act or omission. Late referrals require a formal application for condonation, which is not granted automatically.
4. The CCMA sets the matter down and notifies both parties of the date, time and venue. The commissioner must attempt to resolve the dispute within 30 days of the referral, though the parties may agree to extend.
5. Attend the conciliation. The commissioner typically opens jointly, then caucuses separately with each side, testing what each will realistically accept.
6. If the parties settle, the terms are recorded in a written settlement agreement signed by both parties. Where appropriate, the agreement can be made an arbitration award by consent, which makes it directly enforceable.
7. If the parties do not settle, the commissioner issues a certificate recording that the dispute remains unresolved.
8. After the certificate, the aggrieved party refers the matter onward — to CCMA arbitration for most misconduct and incapacity dismissals, or to the Labour Court for automatically unfair dismissals, retrenchment disputes and discrimination claims. Onward referral has its own deadline running from the certificate date.

The Advantages of Conciliation

• No cost at the CCMA. The CCMA does not charge parties a fee for conciliation, which removes the single biggest barrier facing an unrepresented employee.
• Speed. The statutory design is a resolution attempt within 30 days of referral, and most conciliations are concluded in a single sitting of a few hours — measured against Labour Court timelines, this is very fast.
• Confidentiality and the without-prejudice rule. Conciliation is private and conducted on a without-prejudice basis, and no record of the proceedings is kept, so offers made in an attempt to settle cannot be used against a party later in arbitration or court.
• The parties keep control of the outcome. No third party imposes a result, so a settlement can include terms an arbitrator could not order — a mutual separation, an agreed reference letter, a phased payment, a withdrawal of a disciplinary finding, or a resignation recorded on agreed terms.
• Informality and accessibility. There are no pleadings, no discovery and no formal rules of evidence, so a lay party can participate meaningfully without procedural expertise.
• Relationship preservation. Where the employment relationship is continuing — a grievance, a demotion dispute, an unfair labour practice — conciliation is far less adversarial than litigation and leaves a workable relationship intact more often.
• Certainty and finality when it works. A signed settlement ends the dispute on known terms, whereas arbitration and litigation both carry outcome risk for each side.
• No costs orders. Neither party ordinarily leaves conciliation liable for the other side’s legal costs, which caps downside exposure.

The Disadvantages of Conciliation

• It is not binding and cannot be forced. The commissioner has no power to impose a decision; if one party simply refuses to move, conciliation cannot produce a result.
• Legal representation is generally excluded. A party is ordinarily not entitled to be represented by an attorney or advocate at conciliation, and may appear in person or be represented by a co-employee, or by an office bearer or official of their trade union or employers’ organisation. This is often experienced as a disadvantage by parties facing a complex or high-value dispute.
• Nothing is tested. There is no evidence under oath, no cross-examination and no discovery, so a factually contested dismissal cannot actually be resolved on its merits at this stage.
• Power imbalance is not corrected. An employer with an in-house human resources team and prior CCMA experience faces an employee who may be attending for the first time; the commissioner facilitates but does not equalise.
• It can function as a formality. Where a party has already decided to arbitrate, compulsory conciliation becomes a procedural box to tick that delays the real hearing by weeks.
• Settlement pressure can produce a bad deal. The combination of a single sitting, no representation and financial strain can push a party into accepting materially less than the dispute is worth, and a signed settlement is difficult to reopen.
• Enforceability requires an extra step. A bare settlement agreement is a contract; unless it is made an arbitration award by consent or otherwise certified for enforcement, enforcing a defaulting party’s obligations means starting a fresh process.
• No reasons, no precedent. Conciliation produces no reasoned ruling, so it settles nothing for the next similar dispute in the same workplace.
• Commissioner variability. Facilitation is a skill, and the settlement rate is materially affected by who is allocated the file — a factor no party controls.

Advantages Versus Disadvantages at a Glance

Feature	Advantage	Corresponding disadvantage
Cost	No CCMA fee; no costs orders	Perceived low stakes can invite an unserious approach from the other side
Speed	Resolution attempt within 30 days of referral	Compulsory step delays arbitration where settlement was never realistic
Commissioner’s role	Neutral facilitator, no imposed outcome	Cannot compel a settlement or rule on the merits
Representation	Informal and accessible without a lawyer	Attorneys and advocates generally not entitled to appear
Evidence	No pleadings, discovery or cross-examination	Factual disputes cannot be resolved; credibility is never tested
Confidentiality	Private, without prejudice, no record kept	No reasons and no precedent for future disputes
Outcome	Flexible, creative, party-designed terms	Settlement needs a further step to become directly enforceable

Conciliation Compared With Mediation, Arbitration and Litigation

Mechanism	Who decides	Binding?	Typical cost	Where it fits
Conciliation	The parties, assisted by a CCMA or bargaining council commissioner	No, unless a settlement is signed	No CCMA fee	Compulsory first step for most labour disputes
Mediation	The parties, assisted by a mediator	No, unless a settlement is signed	Private mediator’s fee, usually shared	Voluntary; common in divorce, commercial and family matters
Arbitration	The arbitrator or CCMA commissioner	Yes — a binding award, reviewable by the Labour Court on limited grounds	No CCMA fee for most labour arbitrations; private arbitration is charged	After a certificate of non-resolution, for most misconduct and incapacity dismissals
Labour Court litigation	A judge	Yes — a judgment, subject to appeal	Legal representation costs; adverse costs risk	Automatically unfair dismissals, retrenchment disputes, discrimination claims

Conciliation and mediation are close cousins, but conciliation in the South African labour context is a statutory, compulsory stage with a prescribed forum and prescribed time limits, whereas mediation is generally a voluntary process the parties choose and pay for themselves. The arbitration contrast is sharper still: a commissioner conciliating has no power to decide, while the same commissioner arbitrating issues a binding award. Conciliation persuades; arbitration determines.

Con-Arb: Conciliation and Arbitration on the Same Day

Con-arb is the combined process in which the arbitration proceeds immediately after an unsuccessful conciliation, on the same day and before the same commissioner. Its advantage is that it removes the second referral and the second wait, which materially shortens the overall timeline. Its main limitation is that a party can object in advance to the arbitration leg in most cases, which pushes the matter back into the ordinary two-stage sequence; objection is not available for dismissals relating to probation.

A practical consequence worth stating plainly: a party attending a con-arb must arrive prepared to run an arbitration that day, with witnesses and documents ready. Arriving prepared only to negotiate is the most common and most costly mistake on this route. The current notice period for objecting to the arbitration leg should be confirmed on the CCMA’s website before relying on it.

How to Prepare So the Disadvantages Cost You Less

• Establish the correct forum before referring — a referral to the wrong body wastes the clock and, where a time limit lapses, forces a condonation application.
• Diarise the deadline from the correct trigger date: 30 days from dismissal, 90 days for an unfair labour practice, and a fresh deadline running from the date of the certificate for onward referral.
• Decide a settlement range before the day, with a walk-away point, so the pressure of a single sitting does not do the deciding.
• Take the documents that make the case concrete: contract of employment, payslips, disciplinary notices and outcome, correspondence and any relevant policy.
• Bring an authorised decision-maker or a written mandate — an employer representative who cannot approve a figure guarantees a second sitting.
• Get legal advice before the conciliation, even though an attorney generally cannot appear in it: an attorney can assess prospects, draft the referral, set the settlement mandate, review the wording of a settlement agreement, arrange for it to be made enforceable, and take over fully at arbitration or in the Labour Court.

This preparation is precisely the gap that structured labour-law support is built to close. Burger Huyser Attorneys’ Labour Law practice, supported by specialist consultant Marius Ferreira, advises employees and employers on CCMA and bargaining council disputes from the firm’s head office at 49 First Avenue, Linden, Randburg (011 888 0246), with branches across Gauteng for clients closer to those areas.

CCMA Conciliation in Gauteng: Confirming the Correct Referral Forum Before the Clock Runs

The most common early mistake made by parties in the Johannesburg area is treating the Labour Court in Braamfontein, or a local Magistrate’s Court, as the place a labour dispute begins. Neither is the starting point: a dismissal or unfair labour practice dispute must first be referred for conciliation to the CCMA, or to the bargaining council that holds jurisdiction over the sector and the parties. Where a bargaining council does have jurisdiction — as it does in several established Gauteng manufacturing, motor and engineering sectors — a referral lodged with the CCMA instead can be met with a jurisdictional objection while the referral deadline continues to run. Checking the employment contract, payslip deductions and any applicable collective agreement for a council levy is the quickest practical way to establish which forum applies before anything is lodged.

Frequently Asked Questions

Is conciliation binding in South Africa?

No. The commissioner facilitates a negotiation but has no power to impose an outcome, so conciliation only becomes binding if the parties sign a settlement agreement. Where the parties want that agreement directly enforceable, it can be made an arbitration award by consent rather than left as a bare contract. If no agreement is reached, the commissioner issues a certificate confirming the dispute remains unresolved.

Can I bring a lawyer to a CCMA conciliation?

Generally no. A party is not entitled as of right to legal representation at conciliation, and may appear in person or be represented by a co-employee, or by an office bearer or official of their trade union or employers’ organisation. An attorney can still do a great deal outside the room: assessing prospects, drafting the referral, setting a realistic settlement mandate, checking the settlement wording, and representing the party fully at arbitration or in the Labour Court. Confirm the current representation rules on ccma.org.za, as the CCMA’s rules are amended from time to time.

How long does conciliation take, and what is the deadline to refer?

A dismissal dispute must be referred within 30 days of the date of dismissal, and an unfair labour practice dispute within 90 days of the act or omission complained of. The commissioner must then attempt to resolve the dispute within 30 days of the referral, and the conciliation itself is usually a single sitting of a few hours. A referral lodged late requires a formal condonation application, which is not granted as a matter of course.

What is the main disadvantage of conciliation?

That it cannot be forced to a conclusion. Because the commissioner cannot decide the dispute and no evidence is tested under oath, a party who simply refuses to move leaves conciliation with nothing more than a certificate of non-resolution. The compulsory stage has then consumed several weeks, and the substantive dispute still has to be argued at arbitration or in the Labour Court.

What happens after conciliation fails?

The commissioner issues a certificate that the dispute remains unresolved, which is the jurisdictional key to the next stage. Most misconduct and incapacity dismissal disputes then go to CCMA arbitration, while automatically unfair dismissals, retrenchment disputes and discrimination claims go to the Labour Court. There is a separate deadline for that onward referral, running from the date of the certificate, so the certificate should be actioned rather than filed away.

How is conciliation different from mediation?

In practice both involve a neutral third party helping the parties settle without imposing a decision, and the terms are often used interchangeably. The meaningful South African difference is procedural: labour conciliation is a compulsory statutory stage before a prescribed forum, with prescribed time limits and no fee at the CCMA, whereas mediation is generally a voluntary process the parties choose and pay for privately, common in divorce, family and commercial matters.

If you are weighing up a referral or have already been given a conciliation date, the value of legal advice is mostly in what happens before and after the sitting — confirming the correct forum, getting the referral in within the deadline, and knowing what a settlement is actually worth before you sign it. Burger Huyser Attorneys advises employees and employers on CCMA and bargaining council disputes through its Labour Law practice, from its head office at 49 First Avenue, Linden, Randburg (011 888 0246, Monday to Friday 7:30am to 4:30pm) and branches across Gauteng. Clients regularly single the firm out for being straight about costs and prospects rather than selling false hope, which matters more than usual in a process where the outcome is yours to accept or refuse. The firm carries a 4.8/5 average across 250+ Google reviews, Trustindex verified.