Conciliation

'Conciliation' often serves as an umbrella-term that covers all mediation and facilitative and advisory dispute-resolution processes. Neither process determines an outcome and both share many similarities. For example, both processes involve a neutral third-party (the mediator) who has no enforcing powers.

One significant difference between conciliation and mediation lies in the fact that conciliators are required to possess expert knowledge of the domain in which they conciliate. The conciliator can make suggestions for settlement terms and can give advice on the subject-matter. Conciliators may also use their role to actively encourage the parties to come to a resolution. In certain types of disputes the conciliator has a duty to provide legal information. This helps any agreement reached to comply with any relevant statutory framework pertaining to the dispute. Therefore conciliation may include an advisory aspect. The process of conciliation is often limited to a specific time, like in this process, where a two hour timeframe applies.

Mediation

Mediation is a flexible process conducted confidentially in which a neutral person (mediator) assists parties in working towards a negotiated agreement of a dispute or claim, with the parties remaining in ultimate control of the decision to settle and the terms of the settlement. Normally there will not be a time limit attached to mediation, and is normally set down for a full day, which affects the cost considerably.

Arbitration

Arbitration is a process that is based on the court process. Both parties have the opportunity to present the arbitrator with evidence, after which they will address the arbitrator on the facts and the law pertaining to the dispute. The arbitrator will then make a final and binding award. The parties have no control over the outcome and cannot appeal against the finding of the arbitrator. The only difference between the court process and arbitration is that the arbitrator is not bound by High Court and Appeal Court findings.

Definitions provided in the King III report on corporate governance

Mediation is not defined in any Act. However, the concept has an accepted meaning in practice in South Africa. Mediation may be defined as a process where parties in dispute involve the services of an acceptable, impartial and neutral third party to assist them in negotiating a resolution to their dispute by way of a settlement agreement. The mediator has no independent authority and does not render a decision. All decision-making powers in regard to the dispute remain with the parties. Mediation is a voluntary process both in its initiation, its continuation and its conclusion.
Similarly conciliation is not defined in the Act. Conciliation is, like mediation, a structured negotiation process involving the services of an impartial third party. The mediator will, in addition to playing the role of a mediator, make a formal recommendations, and advise the parties as to how the dispute can be resolved. He might also be required to provide expert advice during the conciliation, assisting the parties in reaching a settlement.