ALTERNATIVE DISPUTE

RESOLUTION
(LLB 2101/SLS 3130)

CONCILIATION
(Week 12)

Facilitator:
Elizabeth Mokeira, Ph.D
Advocate of the High Court of Kenya
Law Teacher: Strathmore University
[email protected]
OUTLINE
Meaning of conciliation
Legal framework governing conciliation
The conciliation process
Distinction between conciliation and mediation
MEANING OF CONCILIATION
Conciliation is a method of resolving disputes without going
to trial, in which a neutral third party, called a conciliator,
restores damaged relationships between disputing parties
by bringing them together, clarifying perceptions, and
pointing out misperceptions.
It is a process where the conciliator helps people in a
dispute to identify the disputed issues, develop options,
consider alternatives and try to reach an agreement.
The conciliator, who may meet with the parties both
separately and together, does this by; lowering tensions,
improving communication, interpreting issues, and
assisting parties in finding a mutually acceptable outcome.
Just like any ADR, Conciliation is a voluntary proceeding,
where the parties involved are free to agree and attempt
to resolve their dispute by conciliation.
The process is also flexible, allowing parties to define the
time, structure and content of the conciliation
These proceedings are conducted privately.
Conciliation proceedings are 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
A conciliator may have professional expertise in the subject
matter in dispute and will generally provide advice about
the issues and options for resolution.
However, a conciliator will not make a judgment or decision
about the dispute.
In other words, just like mediation, the conciliator facilitates
communication between the two parties having the dispute,
with the aim of achieving a settlement or resolution.
The conciliator will usually consider the position of each
party and, unlike in mediation, may offer his/her opinion as
to the merits of each argument and recommend a fair
outcome.
The function of a conciliator is to aid the parties in a neutral
Thus, we can argue that Conciliation is a facilitative method of
dispute resolution in which positive relationships are built.
The conciliator attempts to establish a positive and
compromising relationship between the parties.
The intention is to correct perceptions, reduce fears and improve
communication in order to guide the parties into conflict-free
negotiations and bargaining.
Successful conciliation reduces tension, opens channels of
communication and facilitates continued negotiations.
Frequently, conciliation is used to restore the parties to a pre-
dispute status quo, after which other ADR techniques may be
applied
The Ireland Law Reform Commission in its 2010 report provides
that,
“when provision for conciliation is made in legislative form, it
should be defined as an advisory, consensual and confidential
process, in which parties to the dispute select a neutral and
independent third party to assist them in reaching a mutually
acceptable negotiated agreement”.
The 2002 UNCITRAL Model Law on International Commercial
Conciliation defines conciliation as: ―
… a process, whether referred to by the expression conciliation,
mediation or an expression of similar import, whereby parties
request a third person or persons (―the conciliator) to assist
them in their attempt to reach an amicable settlement of their
dispute arising out of or relating to a contractual or other
legal relationship. The conciliator does not have the authority
to impose upon the parties a solution to the dispute”.
The broad nature of definition by the model law does not
distinguish conciliation from mediation.
However, a distinction can be found between the two dispute
resolution mechanisms in Section 4 of the Model Law, which
states that “The conciliator may, at any stage of the
conciliation proceedings, make proposals for a settlement of
the dispute.”
The conciliator may break an impasse by suggesting solutions to
the parties for them to consider. Generally, the mediator does
not have such powers.
LEGAL FRAMEWORK FOR CONCILIATION
The Constitution of Kenya under Article 159(2) (c) recognizes
the application of alternative methods of dispute resolution
including reconciliation, mediation, arbitration and
traditional dispute resolution mechanisms.
Under Article 252, the Constitution grants Constitutional
Commissions the power necessary for conciliation,
mediation and negotiation in the discharge of their
functions.
In Kenya, conciliation is an alternative method of dispute
resolution mainly for labour disputes. It is rarely used to
resolve other disputes.
At the International arena, the Republic of Kenya has
ratified 50 conventions under the ILO out of which only 37
are in force. The ILO conventions are categorized into three
groups namely; fundamental, governance and technical.
Under the fundamental category, there are 8 conventions and
the Republic of Kenya has ratified 7 of them leaving out the
Freedom of Association and Protection of the Right to
Among the fundamental conventions ratified is the
International Labour Organization (ILO) instrument of 1949,
Right to Organize and Collective Bargaining which contains
provisions relating to labour dispute settlement machinery.
 The main principles set out in these instruments are that:
Procedures for the settlement of labour disputes should assist
the parties to find a solution to the dispute themselves;
Disputes in the public service should be settled through
negotiation between the parties or through independent and
impartial machinery, such as mediation, conciliation and
arbitration;
Governments should make available voluntary conciliation
machinery, which is free of charge and expeditious, to assist
in the prevention and settlement of industrial disputes;
Agreements reached during or as a result of conciliation
proceedings should be drawn up in writing and accorded the
same status as agreements concluded in the usual manner etc
To give effect to its obligations under the ILO instruments,
the government of Kenya, under the abour Relations Act,
2007, provides for conciliation to resolve trade disputes.
The Act defines a “trade dispute” to mean a dispute or
difference, or an apprehended dispute or difference,
between employers and employees, between employers
and trade unions, or between an employers’ organization
and employees or trade unions, concerning any
employment matter, and includes disputes regarding the
dismissal, suspension or redundancy of employees,
allocation of work or the recognition of a trade union.
Further, the Act defines conciliation as the act of conciliating
According to section 58 (a), an employer, group of employers
or employers' organisation and a trade union may conclude
a collective agreement providing for the conciliation of any
category of trade disputes identified in the collective
agreement by an independent and impartial conciliator
appointed by agreement between the parties.
Section 65 of the Act provides that; “Within twenty-one
days of a trade dispute being reported to the Minister as
specified under section 62, the Minister shall appoint a
conciliator to attempt to resolve the trade dispute…”
Persons who may be appointed as conciliators include a
public officer, any other person drawn from a panel of
conciliators or a conciliator from the conciliation and
mediation commission. This is provided for under section
66.
Section 67 of the Act provides for the conciliator‟s powers
to resolve a dispute.
 It provides in subsection 2 that for the purposes of
resolving any trade dispute, the conciliator or conciliation
committee may –
a) Mediate between the parties
b) Conduct a fact finding exercise; and
c) Make recommendations or proposals to the parties for
The conciliator or conciliation committee shall have power to
summon and question any person to attend a conciliation.
Specifically, the conciliator or conciliation committee shall
have power to
(i) summon and question any person to attend a conciliation.
(ii) summon any person who is in possession or control of
any information, book, document or object relevant to
resolving the trade dispute to appear at the conciliation; or
(iii) question any person present at a conciliation.
According to section 68 of the Act, if a trade dispute is
settled in conciliation the terms of the agreement shall be –
(a) recorded in writing; and (b) signed by the parties and the
conciliator.
A signed conciliation agreement becomes binding upon the
parties
A signed copy of the agreement shall be lodged with the
Minister as soon as it is practicable.
The courts have held that agreement following conciliation is
binding on the parties as long as the prescribed procedure or
legal framework is complied with.
In the Indian case of Haresh Dayaram Thakur v Stare of
Maharashta and Ors, the Supreme court considered an appeal
from the High Court challenging a conciliation settlement
agreement.
The appellant filed an objection against a report of the
conciliator setting out grounds of objection to the settlement
among them the failure by the conciliator to comply with the
procedural rules.
The High Court summarily rejected the objection referring to a
previous Order of the Court where the parties had agreed to
be bound by the Conciliation agreement. The Supreme court in
overturning the High Court Order held:
“ the learned Judge in passing the impugned order failed to
notice the apparent illegalities committed by the conciliator in
drawing up the so-called settlement agreement, keeping it
secret from the parties and sending it to the court without
The Supreme Court proceeding to state: “the position is well
settled that if a statute prescribes a procedure for doing a
thing, a thing has to be done according to that procedure”.
Accordingly, the appeal was allowed and the settlement
agreement by the conciliator set aside.
In Kenya, the ELRC has upheld the above position in dealing
with agreements from the conciliation process under the
Labour Relations Act.
In the case of Kenya Shoe & Workers Union v Modern Soap
Factory Ltd [2017] eKLR, Justice Makau rejected an
objection to the suit as being premature by acknowledging
that the prescribed process had been followed by the
conciliator who had filed a report that the parties had not
reached an agreement.
The procedure is simple. Once a dispute is settled in
conciliation the terms of the agreement shall be (a) recorded
in writing; and (b) signed by the parties and the conciliator.
A signed copy of the agreement shall be lodged with the
Minister as soon as it is practicable.
In addition to the Labour Relations Act, Section 12 (9) of
the Labour Institutions Act provides that the Industrial
Court may refuse to determine any dispute before it,
other than an appeal or review, if the Industrial Court
is not satisfied that an attempt has been made to
resolve the dispute through conciliation.
It is a discretionary power given and rarely do industrial
court refuse to hear disputes on this account.
It can be seen that this Act encourages parties to
conciliate their differences.
The above demonstrates a comprehensive conciliation
process framework for the resolution of trade disputes.
The process is time bound and financed by the State.
Parties ought to take advantage of the more cost
effective and expeditious conciliation process in
comparison with the court process.

It is important to note that the provisions requiring referral of
trade disputes to the minister, and appointment by the
minister of conciliators is not mandatory.
Further, it does not oust the jurisdiction of the employment
and labour relations’ courts’ jurisdiction to hear and
determine trade disputes.
The Court of Appeal has interpreted the referral for the
appointment of conciliator by the Minister not to be
mandatory. In Court of Appeal Civil Appeal No. 100 of
2013 Karen Blixen Camp Limited v Kenya Hotels and
Allied Workers Union (2018) eKLR, the appeal arose from
dismissal of a preliminary objection by the trial court.
The preliminary objection was on the ground that the suit was
invalid for the reason that the Claimant did not exhaust the
alternative dispute resolution mechanism set out under Part
VIII of the Labour Relations Act, 2007.
It was contended that the Employment and Labour Relations
Court (ELRC) lacks jurisdiction to hear and determine the
suit.
In this case, the referral had been done but the Minister did
not appoint a conciliator nor give written reasons.
The trial court, in its ruling, had found that Section 62 did not
oust its jurisdiction and proceeded to determine the claim.
The Court of Appeal, Waki JJA presiding, in upholding the
decision of the trial court held,
“We agree with the trial court that section 62 (1) is
permissive and allows all trade disputes to be reported
to the Minister by the parties listed thereunder in the
manner prescribed. There is no compulsion for the
referral, and it was certainly not the intention of
Parliament to confine parties into a straight jacket, place
them at the mercy of the Minister, or oust the
jurisdiction of the court. At best, it was tailored to
enhance good industrial relations between an employer
and an employee and to achieve improved industrial
relations between the employer and the trade union
representing the employee, as partners in social
Whereas conciliation is a faster and cheaper
mechanism to resolve disputes on employment, the
court’s view is that the referral is not mandatory.
Consequently, many of the claims have been filed in
court with the consequence of clogging the courts
which suffer huge case backlog.
In practice, the courts invoke Article 159 and
encourage litigants to go to mediation.
It is time the Judiciary worked closely with the ministry
responsible for labour matters to enhance the
utilization of the conciliation process.
The backlog statistics justify a call for mandatory
conciliation of all trade disputes at first instance. The
parties may then refer trade disputes to court in
event of lack of agreement at conciliation.
In a nutshell,
conciliation is a viable dispute dissolution mechanism with
the main advantage of the parties being in control while
at the same time the third party being able to give
suggestions on the possible solutions to the dispute.
Whereas it may apply to all types of disputes in Kenya, it is
mainly applied to resolve trade disputes.
In Kenya, the Labour Relations Act of 2007 provides for an
elaborative legal framework for conciliation of disputes
but the process is not mandatory prior to litigation in
court.
As we have seen, conciliation is recognized by ILO as a
viable method of dispute resolution in the 1949
Convention on the right to organize and collective
bargaining.
Recommendations under the Convention give guidance on
how state parties can legislate laws on the conciliation of
labour and employment disputes.
PROCEDURE OF CONCILIATION
For disputes other than trade disputes, the parties will
agree to resolve their dispute by conciliation.
The parties will then, mutually, appoint their conciliator
Thereafter, the conciliator requests each of the parties to
provide with a written statement about the facts
relating to the case in hand. It is necessary for both the
parties to submit a written statement to the conciliator.
Along with the conciliator, the parties are also requested
to send the written statement to each other
The next step is for the conciliator to have the initial
meting with the parties.
This is where the conciliator will explain to the parties
how the process will run, the role of the conciliator,
what is expected of the parties etc. it is at this initial
meeting the parties together with the conciliator agree
on the rules of procedure.
In the alternative, the conciliator may communicate
this to the parties in writing.
The conciliator can choose to meet with the parties
collectively or separately depending on how he/she
weights the dispute.
The conduct of the proceedings will be tailored to suit
the case’s specific circumstances.
Conciliation is like mediation. So the conciliator
facilitates the negotiations between the parties with
the aim of reaching a settlement
At some point, the conciliator can suggest a solution to
the parties. This usually happens once the parties
have stated their facts, pointed out issues at dispute
and offered the different options they may use to
resolve the issues.
The parties have an option to accept or reject the
If a settlement is reached, the conciliator reduces it into
writing, it is signed by the parties and the conciliator.
Then it becomes binding like any contract.
If a settlement is not reached, the conciliator will prepare a
report to that effect and give it to the parties.
The parties will be at liberty to pursue other methods of
resolving their dispute.
For trade disputes, the conciliation process is provided for
in Part VIII.
A trade dispute is reported to the cabinet secretary in
charge of labour in the prescribed form
The complainant will serve the other party(the respondent)
and all interested parties and file an affidavit of service
The respondent will file replying statement within 14 days.
If there are interested parties, they may also file their
statements of interest within the said period.
The cabinet secretary shall appoint the conciliator or
conciliation committee within 21 days of the referral and
notify all parties
If the minister does not appoint the conciliator, he or she will
inform the parties and the reasons for non-appointment
Where a party is aggrieved by a Cabinet Secretary’s decision,
that party may refer the matter to the Employment and
Labour Relations Court under a certificate of urgency.
In the event that the cabinet secretary appoints a conciliator,
the conciliator is required to resolve the matter within 30
days.
During the 30 days, there will be the initial meeting
Negotiations
Proposals by the conciliator.
Also, during this period, the conciliator or conciliation
committee may— (a) mediate between the parties; (b)
conduct a fact-finding exercise; and (c) make
recommendations or proposals to the parties for settling the
 In addition, the conciliator or conciliation committee may—
 (a) summon any person to attend a conciliation;
 (b) summon any person who is in possession or control of any
information, book, document or object relevant to resolving
the trade dispute to appear at the conciliation; or
 (c) question any person present at a conciliation
 If a trade dispute is settled in conciliation the terms of the
agreement shall be— (a) recorded in writing; and (b) signed by
the parties and the conciliator.
 A signed copy of the agreement shall be lodged with the Cabinet
Secretary as soon as it is practicable.
 A trade dispute is deemed to be unresolved after conciliation if
the— (a) conciliator issues a certificate that the dispute has
not been resolved by conciliation; or (b) thirty day period from
the appointment of the conciliator, or any longer period agreed
to by the parties, expires.
 If a trade dispute is not resolved after conciliation, a party to the
dispute may refer it to the Employment and Labour Relations
Court in accordance with the rules of the Industrial Court.
DISTINCTION BETWEEN CONCILIATION AND
MEDIATION
We have said that conciliation is similar to mediation.
How different are the two processes?
The role of the impartial third parties
In mediation, the mediator’s role is to facilitate the
negotiation
In conciliation, the conciliator facilitates the negotiation;
evaluates the issues and options suggested by the parties
and offers his/her proposal on the best way to resolve the
dispute
Another obvious difference between a conciliator and a
mediator is that the former will try to persuade you to
reach an agreement based on their own evaluations.
They will listen to your discussions and make interventions
they find appropriate.
A mediator will facilitate the session and encourage you both
They will ask questions, give you prompts, set an
agenda. They will manage the conversation to keep it
on track. Whilst your mediator will not give you
advice or make decisions, they will give you legal
information that you can use to help in your
discussions.
Lastly, Mediation agreement is enforceable by law
while conciliation is enforceable as a decree of the
court
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