Business relationships are characterized by disagreements and misunderstandings whether the relationship is a domestic, national or international one. The proliferation and promotion of Alternative Dispute Resolution models as a means to solve business conflicts is a reflection of the need to avoid conflicts to eat deep into the fabric of any business relationships which might cause irreparable damages to the status and reputation of a business.


On the 15^th of June 2020, the Constitutional Court of Zimbabwe sitting as a full bench delivered a judgment in the case of Isoquant Investments (Pvt) Ltd t/a Zimoco v Memory Darikwa CCZ 06/20, which set out the approach and standards to be followed in conciliation proceedings by a labour officer. The purpose of this article is to unpack these standards and explore how they can be of value to ordinary conciliation proceedings.


More often and in most circumstances, parties turn to our courts of law to get their disputes resolved. This undoubtedly shows that our courts play a pivotal role in our society as such they remain as the most common forum employed by people for the resolution of their disputes. However, this forum has its own shortcomings which cannot be ignored. This has led to the emergence of other alternative dispute resolution methods popularly referred to as ADR.


Conciliation by its very nature is an alternative form of dispute resolution. Conciliation is a process that does not involve the use of power in the resolution of a dispute between parties, as adjudication does. An independent third party (a conciliator) is selected to assist the parties in a dispute to reach an agreement, by affording them an opportunity to resolve and settle the dispute through voluntary participation in the conciliation proceedings.


As can be gleaned from the Darikwa judgment, conciliation process may be divided into distinct steps and the adoption of these step depends on the circumstances of the case. The four broad stages include an introduction, story-telling, dispute analysis and problem solving.


Conciliation enables the parties to be in control of the outcome of the dispute resolution process. Thus, the whole process depends on the willingness of the parties to reach a mutual agreement.


The purpose of the introduction is for the conciliator to begin to develop trust and rapport with the parties and to deal with all essential preliminary matters. The conciliator must make the parties feel confident that he/she is independent of them and has no interest in the matters in dispute.


At the initial stages the conciliator can conduct side-meetings with each party to explain the conciliation process and ascertain whether or not the parties understand the difference between conciliation and adjudication process. Parties also need to understand that the conciliator will not impose the outcome upon them.


Conciliation has the flexibility to be tailored to the parties’ needs. Unlike litigation where the parties have no voice in the selection process of the judicial officer, with conciliation the parties remain the masters of the process. Thus, the parties must be engaged in a serious and bona fide discussion of the matters which they disagree because the terms of the settlement remain as their responsibility.


Albeit the informal nature of conciliation proceedings, the conciliator is supposed to understand his/her role and actively exercise his/her functions else the conciliation proceedings will be rendered a nullity.


A systematic approach in the process must be adopted. The conciliator is at large with regards to the choice and use of the steps and procedures ordinarily associated with the process of conciliation. The Conciliator is not bound by rules of evidence and procedure as the case with the litigation process. The conciliator must choose procedures which enables the quick resolution of the dispute without jeopardising fairness, effectiveness and perceptions of independence or impartiality.


With the story-telling, the conciliator must invite each party to address him/her on the dispute to be conciliated. The parties must disclose the background of the dispute, issues that each party considers to be in dispute and its position in each issue. Given the private and confidential nature of the proceedings, the conciliator must ensure that the venue for the conciliation is appropriate and that there are facilities that can keep the parties in the dispute apart from each other in separate rooms to give them the opportunity to let off steam and there must be break-away rooms large enough to accommodate each party for side-meetings.


Once the conciliator has collected preliminary information from the parties. The dispute-analysis process follows, in essence this enables the conciliator to appreciate the underlying cause of the dispute. To achieve this, the conciliator should ask the parties probing and testing questions to establish the causes, positions, expectations, needs, values and priorities which the parties place on the position.


The next step is for the conciliator to explore options for settlement. The purpose is for the conciliator to assist the parties develop and consider a wide and creative range of options for a possible agreement. This explains why the conciliator is regarded as a designer of the solution. The conciliator must assist the parties to agree to a solution of the dispute which is practical, cost-effective and maximise the mutual satisfaction of the parties’ needs. As a result of the pursuit of such options, the parties must reach an agreement as the settlement of their dispute through conciliation.


From what can be gleaned of this model of ADR is that if conciliation is adopted in light of the guidelines set out in the Darikwa judgment it will be more popular yet an effective and desirable mechanism to resolve business disputes since it leaves parties in the situation of reaching an agreement by mutual consent.