If you’ve felt the wheels turning slower at the CCMA (or the Labour Court), you’re not imagining it. More and more employers (and employees) are struggling to get timely access to commissioners, hearing dates, and efficient processes. And it doesn’t appear to be a single-institution problem — it reflects broader strain across parts of the dispute-resolution system.
The practical impact is real: workplace disputes take longer to finalise, management time gets swallowed by postponements and procedural delays, and matters that could have been resolved early become entrenched (and expensive).
That’s why, in 2026, it’s worth reframing the conversation. Instead of seeing mediation/arbitration as “alternative” dispute resolution, many workplaces should be thinking in terms of appropriate dispute resolution: choosing the right forum and the right process for the dispute in front of you — while staying firmly within the boundaries of South African labour law.
Most South African employers assume that if something escalates, the CCMA will handle it reasonably quickly. Historically, conciliation often provided a practical pressure-release valve. The reality now is that limited capacity and growing demand can mean less time and attention per matter, longer timelines, and more delays.
And “delay” isn’t neutral. A prolonged dispute can:
So the question becomes: what should an employer do to reduce risk and restore certainty — without trying to contract out of statutory rights?
South African labour law does make room for private dispute resolution in certain circumstances. The Labour Relations Act recognises the ability of parties to agree to resolve disputes outside the CCMA’s processes (commonly referenced via section 147(6) and 147(6A)).
That’s the starting point: it can be lawful for an employment contract (or a separate agreement) to include a private dispute resolution mechanism.
But the key theme running through the legal framework (and the surrounding case law) is this:
A private process must not place the employee in a worse position than they would have been in through the CCMA/Labour Court route — and it must be practically accessible.
If you are considering private mediation/arbitration, two requirements matter immediately:
This is exactly why “copy/paste” dispute clauses are dangerous: if the clause looks efficient on paper but becomes unfair in practice, it can create more legal exposure than it prevents.
There is a crucial statutory protection that employers often miss when drafting private dispute-resolution clauses.
In terms of the Labour Relations Act, employees earning below the Basic Conditions of Employment Act (BCEA) earnings threshold may not be required to contribute to the costs of a private dispute-resolution procedure.
And the consequence is significant: if your contract clause requires cost-sharing for private mediation/arbitration, and the employee earns below the threshold, the CCMA can effectively step back in and appoint a commissioner, overriding the clause.
This is why many employers sensibly limit private dispute resolution clauses to:
A structure that balances efficiency with fairness is a two-tier process:
Step 1: Mediation
The goal is early resolution, preserving relationships where possible, and narrowing issues quickly.
Step 2: Private arbitration (if mediation fails)
This creates finality, clearer procedure, and enforceable outcomes — without relying on the capacity of an overstretched public forum.
Importantly, a private process can be designed with clear timelines: when mediation must happen, when arbitration must be scheduled, what documents must be exchanged and by when, and what happens if a party delays.
That certainty is often the biggest commercial advantage.
If you’re revisiting your contracts or HR framework for 2026, a legally safer private dispute-resolution mechanism usually deals with:
The system pressure isn’t going away overnight. Employers who plan for it — by strengthening internal processes and using appropriate private resolution mechanisms where lawful — can reduce uncertainty, cost, and operational disruption.
If you want a simple starting point: audit your employment contract templates and HR policies for dispute clauses, and check whether they’re (1) fair, (2) practical, and (3) compliant for below-threshold employees.
If you’ve felt the wheels turning slower at the CCMA (or the Labour Court), you’re not imagining it. More and more employers (and employees) are struggling to get timely access to commissioners, hearing dates, and efficient processes. And it doesn’t appear to be a single-institution problem — it reflects broader strain across parts of the dispute-resolution system.
The practical impact is real: workplace disputes take longer to finalise, management time gets swallowed by postponements and procedural delays, and matters that could have been resolved early become entrenched (and expensive).
That’s why, in 2026, it’s worth reframing the conversation. Instead of seeing mediation/arbitration as “alternative” dispute resolution, many workplaces should be thinking in terms of appropriate dispute resolution: choosing the right forum and the right process for the dispute in front of you — while staying firmly within the boundaries of South African labour law.
Most South African employers assume that if something escalates, the CCMA will handle it reasonably quickly. Historically, conciliation often provided a practical pressure-release valve. The reality now is that limited capacity and growing demand can mean less time and attention per matter, longer timelines, and more delays.
And “delay” isn’t neutral. A prolonged dispute can:
So the question becomes: what should an employer do to reduce risk and restore certainty — without trying to contract out of statutory rights?
South African labour law does make room for private dispute resolution in certain circumstances. The Labour Relations Act recognises the ability of parties to agree to resolve disputes outside the CCMA’s processes (commonly referenced via section 147(6) and 147(6A)).
That’s the starting point: it can be lawful for an employment contract (or a separate agreement) to include a private dispute resolution mechanism.
But the key theme running through the legal framework (and the surrounding case law) is this:
A private process must not place the employee in a worse position than they would have been in through the CCMA/Labour Court route — and it must be practically accessible.
If you are considering private mediation/arbitration, two requirements matter immediately:
This is exactly why “copy/paste” dispute clauses are dangerous: if the clause looks efficient on paper but becomes unfair in practice, it can create more legal exposure than it prevents.
There is a crucial statutory protection that employers often miss when drafting private dispute-resolution clauses.
In terms of the Labour Relations Act, employees earning below the Basic Conditions of Employment Act (BCEA) earnings threshold may not be required to contribute to the costs of a private dispute-resolution procedure.
And the consequence is significant: if your contract clause requires cost-sharing for private mediation/arbitration, and the employee earns below the threshold, the CCMA can effectively step back in and appoint a commissioner, overriding the clause.
This is why many employers sensibly limit private dispute resolution clauses to:
A structure that balances efficiency with fairness is a two-tier process:
Step 1: Mediation
The goal is early resolution, preserving relationships where possible, and narrowing issues quickly.
Step 2: Private arbitration (if mediation fails)
This creates finality, clearer procedure, and enforceable outcomes — without relying on the capacity of an overstretched public forum.
Importantly, a private process can be designed with clear timelines: when mediation must happen, when arbitration must be scheduled, what documents must be exchanged and by when, and what happens if a party delays.
That certainty is often the biggest commercial advantage.
If you’re revisiting your contracts or HR framework for 2026, a legally safer private dispute-resolution mechanism usually deals with:
The system pressure isn’t going away overnight. Employers who plan for it — by strengthening internal processes and using appropriate private resolution mechanisms where lawful — can reduce uncertainty, cost, and operational disruption.
If you want a simple starting point: audit your employment contract templates and HR policies for dispute clauses, and check whether they’re (1) fair, (2) practical, and (3) compliant for below-threshold employees.
