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THIS week, Labour Guides discusses the importance of preparing your “Case” for negotiations at the CCMA with Mr. Chris Mbileni. Mbileni heads up Afroscene Management Consulting and is also a part-time Commissioner at the CCMA.

Labour Guides constantly receives queries surrounding issues which have been covered in previous editions. We urge users to take a look at our fairly extensive Index, as well as the Letters sections, to see whether their questions and areas of interest may already have been dealt with.

Labour relations in the new employer / employee bargaining scene

WHY ARE NEGOTIATIONS UNPREPARED?
People assume “just talking” is low risk. Experience has shown that many going for conciliation at the CCMA think preparation is not important. Since they know that they cannot be forced into a settlement, they see little risk in saying, “Let’s hear what the other side has to say”. If they like it, they can accept it. If they don’t, they can walk away.

“Preparation takes too much time”. Preparation does take time - but it probably saves more time than it takes. A well-prepared negotiator can narrow the issues for a settlement, formulate elegant options, or evaluate tentative offers far more quickly and wisely than a negotiator who does not know the situation.

People don’t know how to prepare well. Many people feel prepared if they know what they want and what they will settle for. They consider positional preparation that they are unaware it leads to positional negotiation. By confusing on what they will ask for and what they will give up, they set themselves up for an adversarial, zero-sum kind of negotiation.

A systematic approach to preparation:
Experience shows that preparation benefits from a systematic approach. There is no single right way to organise ideas. To be well prepared, we want to get our hands around the entire negotiation, use a checklist to identify those areas where preparation is likely to be most helpful, and then get to work.

Goal: a good outcome
A good result of conciliation can be seen as involving the following elements and strategies. The better we handle each of them, the better the results.

1. Understanding interests:
Preparing for negotiation at the CCMA or any other place must entail some of the following questions? Are we likely to be arguing about our positions, our demands? Why do we want what we want? Are we sure? Have we prioritized the issues that are important to us? Are we confused about “Where they are coming from?” Have we failed to consider what we would want if we were in their shoes or position?

Two months ago, a former Managing Director of a reputable South African company steps in for a conciliation at the CCMA after seeking advice from a labour expert. He declared a dispute with the Board of the company he has been directing for 12 solid years. He was angry, frustrated and afflicted by the new adversarial relationship with his colleagues. He turned the company around to be profitable and maintained a steady growth over the years until when he spearheaded a management buyout (MBO) at the end of 1996. He was uncertain of the outcome of the conciliation. He kept making threats of a civil suite against the company. A labour lawyer represented the company. Guess what? A combination of skills and strategy of the commissioner helped the parties to sign a well-crafted agreement after 4 hours of a facilitated brainstorming process which took into account the parties interests and benefit-cost analysis.

2. Exploring Options:
What are some possible agreements or parts of an agreement that might meet the interests of the parties or help reconcile those interests? Exploring, improving and evaluating the comparative merits of such options should be a major focus of the mediator and the parties. Some questions about options include the following: Does the situation look as though someone must win, the other lose? Is this a situation where both parties have things to gain? Is it possible that the parties’ interests are compatible? Have they never engaged in joint brainstorming of possibilities? Have they reached a deadlock or stalemate?

One of the Divisions of a Group of Companies dismissed a Factory and Production Manager for poor work performance and for failing to carry out the terms of his job description. The company reversed the decision pending a disciplinary enquiry that ended in chaos. An alternative equivalent position was offered to the dismissed manager within the Group in order to settle the dispute without involving a third party such as the Bargaining Council or the CCMA. The offer was turned down. This dispute was referred for conciliation but ended up at arbitration. The former manager is without a job now because he failed to negotiate options effectively.

A further example is where a union and a company negotiate a settlement over a dismissed employee. The union wants reinstatement or re-employment and the company is considering financial compensation because the relationship is “irretrievably” broken down. Can these parties explore the best and fair option that will satisfy the interests or both?

3. Legitimacy:
We may well understand the interests of the other side and invent ways of reconciling those interests, but we fail to convince the other side that they are not being ripped off, we may not sign a durable settlement. We need to ask questions like: What precedents or other external standards of fairness might be used to persuade both parties that they could accept some option without being unfairly treated. Will it help to give them convincing arguments as to why our proposal is fair for them? Will we have to explain to others why we agreed to the proposal? Will they? Are there critics who are likely to go after one or both parties? Suggestions are: Develop a range of fairness; Consider “fair” processes; Prepare to help them explain the results.

If the interests have been negotiated, options developed and discussed and the question of fairness has been considered and agreed upon, then the parties can now make commitments in the form of agreements or settlements. If the parties did not agree on any one aspect of the above, they will resort to their walk-away alternative. This alternative is too costly to both parties in that they will now prepare to invest on time, health, lost production, pain of having unresolved dispute.

For negotiators and conciliators to be successful, they require analytic skills, interpersonal communication skills and interdisciplinary approach such as the use of strategic vision, law, economics, finance, human resource policy and procedures, sociology, psychology and history. An ideal ir preferred situation is to nurture and strengthen parties’ relationship through effective and efficient communication that considers the active listening.

Parties go to a negotiation not knowing what they are going to negotiate. A question was posed to the General Secretary of a union and a labour lawyer with an MBA degree who came to the CCMA for conciliation . They were not aware that they are negotiating their interests of both their principals, options for possible agreements and essential standards and precedents that could convince both their principals that a proposed settlement would be fair. It was not embarrassing for the commissioner to discover such ignorance.