Topic 9 – Conciliation and Arbitration

Tutorial Solutions
Shivani Swastika Lal – 2007004229

1. Arbitration is a method of conflict settlement in which the parties avoid the

conventional court process and get a neutral third party called the arbitrator to settle their
legal dispute. Both sides by mutual concern may appoint one person as arbitrator or may
appoint one arbitrator each, who then appoints another person as the third arbitrator.
Conciliation is where parties discuss issues to reach an agreement with assistance from a
dispute resolution practitioner (the conciliator). This is the conciliator who is responsible
for the conciliation process. The process is akin to mediation. A conciliator may,
however, offer guidance on disputed issues and settlement options, but will not make any
determinations. Arbitration is where the parties to a dispute present arguments and facts
to the judge (the arbitrator) of a dispute settlement. The arbitrator makes decisions which
are binding.

2. Relationship of conciliation and arbitration to collective bargaining process:

Conciliation and arbitration provide channels by which management and unions may be
able to operate. Attempt to resolve their differences by introducing a third party if they so
wish; the availability or use of such processes does not automatically mean avoiding or
reducing the use of industrial actions. Conciliation promotes the joint statutory collective
bargaining mechanism, although arbitration will weaken the mechanism on any extensive
scale. Conciliation and arbitration may simply be used to close the final distance between
the parties or to settle pending problems within otherwise successful negotiations. The
qualities of third-party conciliation and arbitration interference approaches as opposed to
the participant's own industrial action intervention strategy are all presented from three
different perspectives:
 From an end-to - end viewpoint (which illustrates the fundamental need for the
collective bargaining system to resolve disputes), they can be interpreted as
complementary, equivalent and alternate approaches – each available in the event
 of a negotiating breakdown and each able to achieve a resolution and the
continuity of the contractual relationship.
 From the perspective of the quality of the means (which emphasizes the
attainment of a settlement through processes based on a joint and direct agreement
and regulation), arbitration can be considered subordinate and inferior to either
conciliation or the participants' own use of industrial power to resolve their
differences.
 From the viewpoint of implies (which places the biggest emphasis on maintaining
industrial peace and avoiding disruption within the systems of industrial
relations), the conciliation and arbitration intervention strategies can be seen as
better suited and superior strategies for the use of industrial action.

3. The parties participating in compulsory arbitration are expected to go through the third
party to settle their dispute. When there is an arbitration provision in a contract and the
contract itself is legitimate, the parties must abide by the provision. A court may also
order arbitration as a way to avoid a case from going to trial, which the parties must
comply with or face potential penalties. Voluntary arbitration is another option. In this
situation, the parties concerned decide to use a third party, including an arbitration
attorney, to help settle their disputes on their own. No contract or law demands that
action, but preferring to use arbitration will save money, time, and perhaps even good
will. All of these are relevant in business relationships. If the matter is personal, such as
in the case of a divorce, mutual arbitration can be equally beneficial.

4. In pendulum arbitration (on the other hand refers to as straight option, final (or last) offer
or flip-flop arbitration) the arbitrator's function is limited to choosing between the two
parties' final positions, contrary to traditional or transparent arbitration where the
arbitrator may exercise discretion on what is fair and equitable in the circumstances and
propose a compromise award. The appropriate example would be that the idea of
pendulum arbitration originated in the USA where the pendulum nature of dispute
arbitration in legal cases has become a well-established feature of the contract
enforcement method, as ACAS noted in relation to the UK.
5. Conciliation and Arbitration services in Fiji:

 Employment Grievances - An employment grievance is a grievance that a

worker, may have against the employer or former employer because of the
following claims:

 The worker has been dismissed;

 The worker ‘s employment, or one or more conditions of it, is or are affected to
the worker ‘s disadvantage by some unjustifiable action by the employer;
 The worker has been discriminated within the terms of Part 9 of the ERP;
 The worker has been sexually harassed in the worker ‘s employment within the
terms of section 76 of the ERP;
 The worker has been subject to duress in the worker ‘s employment in relation to
membership or non-membership of a union.

 Employment Disputes - An employment dispute is a dispute that a trade union

may have against a union member ‘s employer on the following reasons:
 On charges or amendments to their existing collective agreements
 A dispute that an employer may have against the union for breaching the
collective agreement
 A dispute that a trade union may have against the employer for breaching the
collective agreement or the minimum standards of employment stipulated under
the Employment Relations Promulgation 2007

 The strike and lockout under the ERP has therefore taken a new meaning which
seeks the pro-active intervention of conciliators and arbitrators to prevent
catastrophic outcome in order to maintain labor market stability and boost
investor confidence. During the year under review, mediation Unit receives a total
of 5 cases of strike notice wherein the union was contemplating strike action.
These reports related to the tourism and sawmill & logging industries, which if
 uncontrolled had the potential to cripple the tourism industry that is quite
vulnerable to our economy.

 Effective Management of Strike - ERP recognizes that the duty of good faith
does not preclude certain legal strikes and lockouts, and also ensures that
mediation services are available to solve issues where there is slightest threat of a
strike or lockout in both, essential and non-essential services.

 ERP Training - In providing mediation services and to support employment

relationship among the social partners, the Mediation Unit also disseminates
information by conducting free awareness training on the new legislation. In
2012, the Unit conducted a total of 7ERP Awareness and LMCC Training to
external customers.