FACULTY OF LAW

DEPARTMENT: PRIVATE & PROCEDURAL LAW

NAME: MUJAME URINAVI VG

STUDENT NUMBER:219352557

COURSE NAME: CONCILIATION AND MEDIATION

COURSE CODE: PMD2412

ASSIGNMENT 1
DUE DATE: 17 September 2020

LECTURERS NAME: MR NGHIISHILILWA

Contents
(1a). Explain concept conciliation” and why I it used as an alternative means to resolve disputes.
.................................................................................................................................................................... 3
i)Merits of using conciliation....................................................................................................................4
a)Conciliation ensures party autonomy.................................................................................................4
c)Conciliation is time and cost efficient..................................................................................................5
d)Conciliation ensures confidentiality.....................................................................................................5
e)Example of case which were resolved using conciliation process in Namibia..............................5
Conclusion.................................................................................................................................................5
(2b). In your words discuss the process of mediation and why this method of dispute
resolution is preferred..........................................................................................................................6
References.......................................................................................................................................10

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(1a). Explain concept conciliation” and why I it used as an alternative means to
resolve disputes.
Alternative dispute can be defined with reference to its function, that is it is a form that
is used in resolving conflicts without including the court 1. It has to be pin pointed from
the onset that conflicts/disputes are evident on a day to day basis from sectors such as
home, personal relationships, business as well as in the society. As such when these
disputes involve, it is crucial that a friendly outcome be resolved, which leaves both
parties involved satisfied with the outcome of it so as to promote friendly co-existence.
When a dispute occurs it is wise to come up with alternative dispute resolutions and
these encompasses formal and informal ways. The essay shall explain the concept of
conciliation as one of the alternative means of dispute resolution, showing its
importance, application as well as cases which were successful solved in Namibia using
this method.

Conciliation refers to the one of the alternative out-of-court dispute resolution instrument
which ensures that conflicting parties continue to have friendly relationship after the
settlement of their conflict (ibid). From the adoption of this definition one can cite key
differences between conciliation and mediation. One noted difference, between
mediation and conciliation is that, Civil law counties are the most ones who makes use
of the conciliation method and an example where the method is adopted is in Italy.

They are also similarities between the concepts of conciliation and mediation. For
example, the process are similar in the sense that they are both voluntary procedure,
flexible, confidential, and interest based process 2.Both parties involved in a conciliation
or mediation process aims to reach a pleasant-sounding dispute settlement with the
assistance of the conciliator, who acts as a neutral third party. However, having
discussed the key similarities between the concepts one needs to stress the differences
as well. mediation, differences can also be noted. The main difference between
conciliation and mediation proceedings is that, during the proceeding of a conciliation
1
Labour Act 11 of 2007 (section 82)

2
The Namibian Constitution of 1990 (Article 12)

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dispute, the conciliator can be asked by the parties involved to provide them with a non-
binding settlement proposal3. This is quite different with the application of mediation,
where in such cases, the mediator will abstain himself from such proposals.

In addition to the above noted point, conciliation differs from mediation in the sense that
it is a voluntary proceeding, this in turn grants freedom to the conflicting parties to
establish an agreement as well as try to resolve their dispute by conciliation (ibid).
Hence, one can argue that, the process is very flexible in nature and ensures that
parties can define the time, structure and content of the conciliation proceedings. It is
also vital to note that, proceedings of a conciliation process are rarely public. They are
characterized by interest-based, as the conciliator will when proposing a settlement, not
only take into account the parties' legal positions, but also their; commercial, financial
and / or personal interests. Like in mediation proceedings, the ultimate decision to agree
on the settlement remains with the parties.

i)Merits of using conciliation

a)Conciliation ensures party autonomy.
This is ensured in the sense that both parties are given the authority to choose the
timing, language, place, structure and content of the conciliation proceedings.

b)Freedom on selecting a conciliator.

A conciliator in resolving conflicts it’s not a must to have professional background. This
therefore, enables conflicting parties to use their on selection for a suitable conciliator
using information such as experience, professional and / or personal expertise,
availability, language and cultural skills. 4It is crucial during the conciliation process, for a
conciliator to be impartial and independent. This enables parties to feel free to discuss

their issues as they know the person they selected serves their best interests, unlike in
a situation whereby one does not have a say in selecting the conciliator.

3
Tobie, W. (2019). Alternative Dispute Resolution in South Africa: Negoation, Mediation,
Arbitration and Ombusman, Butterworth.

4
John, B. (2008). Labour Dispute Resolution, Juta.
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c)Conciliation is time and cost efficient.
Due to the notion that conciliation proceedings are informal and flexible, this ensures
that they are carried out in a time and cost efficient manner.

d)Conciliation ensures confidentiality.

Confidentiality entails, treating issues discussed under the negoation procedure remains
issues of privacy and not to be disclosed to anyone. Therefore, the matters discussed
under conciliation are matters not be disclosed to anyone else. Thus, disputes can be
settled discretely and business secrets will remain confidential.

e)Example of case which were resolved using conciliation process in Namibia

A notable case in this category is the case between Witvel meat (PTY) LTD and others
v Disciplinary Committee for Legal Practitioners 5. In this case Witvel meat together with
other six appellants complained to the Law society concerning Koep and Partners,
which is a firm of legal practitioners which is currently based in Windhoek.in this case,
the legal firm acted against the requirements of their duties when they were instructed
what to do by the fifth and sixth respondents. This resulted in undermining the right to
privacy and information’s of other members. The supreme court ruled that, the
appellants had failed in their applications for condonation and reinstatement of the
appeal, and the was no reason why they should not be instructed to pay the costs to the
appealing parties.

Conclusion
The essence of the essay was to discuss one of the strategies used in resolving
disputes namely conciliation. Furthermore, in undertaking the discussion it was revealed
that, they exist a close relation between the use and application of conciliation as well
as the mediation process. However, they are also differences in the applicability of
these two concepts. To further understanding the application of this process, its benefits
5
Labour Act 11 of 2007 (section 82

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were noted as well as the provision of resolved cases which were addressed using this
strategy in Namibia were illustrated.

(2b). In your words discuss the process of mediation and why this method of
dispute resolution is preferred.
When conflict occurs be it at home or workplace, they are alternative ways that can be
used to solve it such as through mediation or arbitration. The essay requires one, to
examine the process of mediation and give reasons for using it as an alternative conflict
resolution strategy. Mediation involves a neutral and impartial third party, the mediator,
who facilitates dialogue in a structured multi stage process to help parties reach a
conclusive and mutually satisfactory agreement. A mediator is there to assist conflicting
parties in identifying and articulating their own interests, priorities, needs and wishes to
each other. As such ,mediation can be seen as a key part of the civil litigation system in
both state and federal courts, and is an integral dispute resolution tool for disputes
involving federal agencies.6  The most common disputes that lead to mediation are
those involving contracts, family law matters, and personal injury or employment
disagreements (ibid)..

Mediation is an informal meeting that only lasts a couple hours, or can be a scheduled
settlement conference that lasts an entire day. This meeting can be held at a neutral
location, such as the mediator’s office. Mediation is voluntary to both parties and is
nonbinding, meaning that the mediator cannot force either party to follow a certain
course of action, or do something that either refuses to do. This distinguishes mediation
from an arbitration, where the arbitrator, like a judge, can hand down a decision that
binds the parties to follow a course of action

For one to be considered a mediator, they are no legal requirements needed because
mediators have no decision-making authority and cannot impose a decision 7. Despite
this, a mediator must be a trained professional who has requisite qualifications that

6
Tanner F., (2000). “Conflict Prevention and Conflict Resolution: Limits of
Multilateralism”, International Review of the Red Cross.

The Namibian Constitution of 1990 (Article 12

7

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allow her/him to foster settlement and assist the parties in negotiating a settlement that
is tailored to meet each side’s needs. Due to mediation’s widespread popularity, both
the American Bar Association and the Association for Conflict Resolution have assisted
many states in designing mediator certification standards. 8The requirements for one to
be considered a mediator includes, having a minimum of 20 to 50 hours of general
mediator training and mediation experience either as a co-mediator or observer. While
there is no requirement that parties use certified mediators, mediators with this level of
training are often more effective. Parties often have enormous resources invested in a
dispute and the marginal additional cost of a certified mediator is usually considered
acceptable considering the increased chance of a successful resolution such a mediator
may provide.

A mediator is there to help parties reach a mutually agreeable settlement by identifying

issues, exploring areas of agreement, and finding areas of compromise. Typically, the
mediator will allot time to each party to provide an account of the circumstances that
have led to a dispute. After this accounting of the facts, a mediator helps each party
discover shared interests and discover resolutions that can promote mutual gain.

Mediation as an alternative resolution strategy has the following merits. To begin with,
lawyers, judges, and other decision-makers find that one of the greatest benefits of
mediation is that it can foster cooperation and understanding. Mediators examine the
causes of conflict and develop solutions. To reach a successful conclusion, the parties
must collaborate with one another. Comparably with litigation is more likely to breed
hostility and mistrust between disputing parties because the parties are competing with
one another to “win.”

8
The Namibian Constitution of 1990 (Article 12).

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Mediation is also a cost-effective way of resolving a dispute 9.  It is much less expensive
than litigation and it offers a relatively predictive cost, all of which is paid to a mediator.
For example, in Arizona, trained mediators typically charge around $250 per hour.
Litigation fees can be exorbitant not only because of attorney’s fees, but also because
of fees associated with filing a suit and paying ancillary litigation costs.

More so, a mediation can be a much quicker process than litigation. Mediations aren’t
cumbersome processes and each mediation session may last two to three hours. This
is especially helpful in family law cases, where prolonged law disputes can have
psychological and emotional costs for the children involved. Studies have found that
trials, which can take months to prepare for and weeks to conduct, have a detrimental
effect and cause tension for children10.

In addition, mediation provides a confidential forum for resolving disputes. Private

information that may have to be revealed to the judge, jury, or public during a trial
remains private during mediation since mediation is conducted behind closed doors.
Furthermore, while the ultimate decision in a trial becomes part of the public record, an
agreement reached by the parties can remain private 11. Mediation’s privacy can be
especially appealing to divorcing spouses or if the facts underlying a dispute are of an
intimate nature.

To sum up, mediations put dispute resolution into the hands of the disputing parties.
Since there are no complex rules of procedure and evidence, parties have a great deal

9
Kenneth T. W. (1992). Conflict and conflict management: Reflections and
update. Journal of Organizational Behavior, 13 (3), 265–274. Retrieved on October,
2012 from JSTOR.

10
The Namibian Constitution of 1990 (Article 12

11
Thomas, K. W. (1976). Conflict and conflict management. In M. D. Dunnette (Ed.),
Handbook in industrial and organizational psychology (pp. 889–935). Chicago: Rand
McNally

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of flexibility and can adjust the breadth of the mediation to discuss whatever topics that
they think are important.

Example of cases which were resolved in Namibia using mediation is the case between
Standard Bank Namibia Limited v Muukua (2019). In this case, the matter was brought
before the court to decide either it was applicable for a mediator who was involved in a
mediation session must be called so as to testify under oath in conduct on the terms
that the parties agreed on.12 As such the standard bank legal plaintiff claimed legal
proceedings against Muukua, for failure to comply to the obligation to pay monthly
instalments under the agreed dates. To this issue the courts ruled that, the plaintiff ‘s
application for leave to call the mediator to testify on the terms of the settlement was
dismissed.

Conclusively, mediations, though with many benefits, are not always the best way to
resolve a disagreement because parties sometimes need a legally-binding outcome that
will create obligations to solve their problems. Despite this, a mediation can often help
settle controversies while also decreasing aggression and animosity between parties.  

12
Tobie, W. (2019). Alternative Dispute Resolution in South Africa: Negoation,
Mediation, Arbitration and Ombusman, Butterworth.

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References
Statutes

Labour Act 11 of 2007 (section 82

Textbooks

John, B. (2008). Labour Dispute Resolution, Juta.

Thomas, K. W. (1976). Conflict and conflict management. In M. D. Dunnette (Ed.),

Handbook in industrial and organizational psychology (pp. 889–935). Chicago: Rand
McNally

Tobie, W. (2019). Alternative Dispute Resolution in South Africa: Negoation, Mediation,

Arbitration and Ombusman, Butterworth.

Jounals

Kenneth T. W. (1992). Conflict and conflict management: Reflections and

update. Journal of Organizational Behavior, 13 (3), 265–274. Retrieved on October,
2012 from JSTOR.

WakefieldR. L., Leidner D. E., & Garrison G., (2008). A model of conflict, leadership,
and performance in virtual teams. Information Systems Research, 19 (4), 434-455.
Retrieved on September 29, 2012 from EBSCOhost database.

Tanner F., (2000). “Conflict Prevention and Conflict Resolution: Limits of

Multilateralism”, International Review of the Red Cross.

The Namibian Constitution of 1990 (Article 12

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