Summary Note:

• The Nature of Labor Disputes
• Types of Labour Disputes
• Mediation Process
• Benefits of Mediation
• Conclusion

OVERVIEW

In Tanzania, the Commission for Mediation and Arbitration (CMA), defines Mediation as a process in which a third party is appointed as a mediator and attempts to assist the parties to resolve a dispute; and may through discussions and facilitation make an effort to resolve the dispute amicably.  In other words, mediation is an alternative dispute resolution which is meant to help parties resolve their dispute amicably and quickly. A mediator is an independent and neutral person who has the expertise to assist disputing parties reach a negotiated settlement.

During the process of mediation, the parties are free to share information and suggestions for settling the dispute between/ among themselves. However, the mediator may in addition suggest or explore different settlement ideas. The settlement agreement obtained after mediation binds the parties and can be executed as Decree in Labour Court. 

The matters that go through mediation are mostly labour disputes classified as; a dispute of right and a dispute of interest. Mediation process is mandatory before the matter is referred to arbitration, labour court, being struck out or lockout.

THE NATURE OF LABOUR DISPUTES

 Industrial relation involves interactions between/among employer and employees. Like in any other relations, it’s inevitable to have a clash of interests resulting to dissatisfaction of either party leading to industrial disputes or conflicts. Such disputes may take various forms like; dismissal, strikes, protests, demonstrations, lockouts, retrenchments. Lack of transparency in contractual agreements and failure to comply to labour rules when terminating contracts has jeopardized the employer – employee relationship.  Additionally, most contracts are vaguely write hence not stipulating clear terms, for example; payments whereby employees expect salary increment while the employer looks on the side of increasing capital.

TYPES OF LABOUR DISPUTES

• Dispute of Right/ Complaint

It’s a dispute concerning the violation of an existing right embodied in a law, collective agreement or individual contract of employment. If the matter remains unresolved through the mediation process, then it will be referred for arbitration or Labour Court as deems fit.

• Dispute of Interest

It’s a dispute that arises from differences over a determination of future rights and obligations arising due to failure of collective bargaining. If the matter remains unresolved through the mediation process, then a party may opt for strike out or lockout.

• Collective Bargaining

It’s a process whereby workers discuss regularly problems that arise from daily activities.

• Individual and Collective Disputes

Individual labour dispute involves an individual contract of employment while a collective labour dispute involves several employees. Individual dispute can develop into a collective dispute where mostly a point of principle is involved and if it’s taken up by a trade union. Individual petitioners are named as individuals as parties to the litigation are less likely to be represented by counsel. While litigants in collective disputes are represented by counsel or syndicate representative.

MEDIATION PROCESS

Mediation process involves a third party who is called by a trade union and management to help negotiate the contract and reach a settlement. The third party does not definitely resolve the dispute but helps the parties move towards reaching an agreement through suggesting possible solutions to dead end issues. The proceedings are strictly confidential and without prejudice.

Functions of a Mediator is; to create conducive environment for dispute resolution by explaining the rules of engagement/statement of understanding for the parties’ signature. The mediator must possess good communication skills, be able to manage time efficiently, build trust of the parties. Attributes such as fairness, impartiality and integrity are key to a good mediator.

The process is designed to assist parties reach an agreement by themselves without being coerced. Under the Employment and Labour Relations Act (2004) a party is only required to attend a mediation hearing convened by the commission thereafter is voluntary. According to the law, none of the parties is compelled to settle and may leave the proceedings at any time, although it’s advised that the parties make an attempt to settle amicably.

Section 86 of the Labour and Relations Act, 2004 requires that, a dispute referred to the Commission be in a prescribed form. The party referring the dispute shall serve the other party to the dispute. On receipt of the referral, the Commission shall appoint a mediator; set time, date and place of the mediation hearing. The mediator is required under the law resolve the dispute within thirty (30) days of the referral or a longer period agreed in writing by both the parties to the dispute. The same authority requires the mediator to decide the manner in which mediation shall be conducted, if necessary require additional meetings between the thirty (30) days period.

A party to a dispute may be represented by; a member or an official of that party’s trade union pr employers association or an advocate or a personal representative of the party’s own choice. If the mediator fails to resolve the dispute within the given time frame, a party to the dispute may;

• If the dispute is a “dispute of interest” – give notice of its intention to commence a strike or a lockout.
• If it’s a “dispute of complaint – refer the complaint to arbitration or Labour Court.

Meanwhile, the mediator shall remain in hold of the dispute until the dispute is settled; and may convene meetings any time before or during strike, lockout, arbitration or adjudication.

Where the employees or trade union refer a dispute of interest to the Commission, the mediator may;

• Extend the stipulated period by another 30 days if either the employees or trade union fails to attend the hearing arranged by the Commission.
• Shorten the period, if the employer or employers ‘association party to the dispute fail to attend the hearing.

The mediator may dismiss the complaint if the party who referred the complaint fails to attend a mediation hearing or decide the complaint if the other party to the complaint fails to attend a mediation hearing. The decision may be enforced in the Labour Court as a decree of a court of competent jurisdiction. However, the Commission may by virtue of Section 87 (5) of the Employment and Labour Relation Act, 2004 reverse the decision if upon satisfaction that there is good grounds for failing to attend the hearing.

It should be noted that, once the Commission has made a decision ex-parte (that is decision made without other party present), it’s only the Commission alone that can review its decision and cannot be challenged in any Court of law.

All in all, the purpose of mediation process is to find a common ground between/among the parties. The mediator’s work is to persuade parties through proposals and arguments to come to a mutual understanding. The mediator cannot coerce the parties to reach a settlement or give binding decisions. In case a settlement of a dispute has been reached, a certificate of settlement is signed by the parties. If no settlement is reached, the matter is referred for arbitration if deems fit alternatively the matter is referred to Labour Court if required to be determined by adjudication.

BENEFITS OF MEDIATION

• Mediation is a less formal process, which allows the parties to feel more comfortable reaching a settlement regarding the conflict. There are no rules or legal precedents involved. Decisions are not imposed on parties unlike in adversarial forums. Parties can come up with creative solutions.
• Privacy and confidentiality where by parties freely express themselves since mediation sessions take place in private settings. Further, the sessions are confidential hence the records are not open for public.
• It is less expensive and time saving compared to solving dispute through the court process which may require more time due to highly technical issues or formalities.
• Parties have full control of their participation in the mediation process, whereby terminate their participation at any point.

IN CONCLUSION

Mediation is an alternative dispute resolution brought before an independent third party. It lays down framework for a collaborative and a non-confrontational problem solving in order to preserve relationships in a way that would not possible in a lawsuit. It’s a voluntary process and can be opted out at any point. The mediator has no authority to bind the parties with his/her decision unless both parties agree to the mediator’s settlement ideas and suggestions. 

Disclaimer: This article is authored by Irene Gunze, Head of Corporate Department from Rive & Co, a new and innovating law firm as a result of the partnership between ABC Attorneys, Stallion Attorneys and Sepia Attorneys, built on the foundation of trust, credibility, and novelty, offering expert legal solutions.  This Article is for informational purposes only and should not be construed as legal advice. It is recommended to consult with a qualified legal professional for advice specific to your situation.