South Africa opts for mediation over litigation
Alternative dispute resolution in labor management, contract negotiations and generally in unionized environments has deep roots in SA. But mediation has lagged in other areas. New laws, more aligned with Nelson Mandela’s vision of the ‘Rainbow Nation’, are set to address this. So — what’s going on?
By Wanda Hennig
An abridged version of this article ran in the Sunday Tribune on May 27, 2012.
By afternoon and the drive home, there’s an update: ‘First blood in Raj will battle’.
The stories and the characters change day by day. But the thrust of the message recurs with the slugging regularity of a middleweight going for a win. Headlines that elicit images of blood and guts. Pugilistic opponents slugging it out. War.
And who wins in this war?
A cynic might point to the lawyers rubbing their hands in glee and laughing all the way to the bank.
But this “speak to my lawyer” litigious approach to dispute resolution — costly, often long-drawn-out, “winner takes all” and currently the norm in SA — could be heading for a count-down, if not a total knockout.
The “Mediation Pilot Project” follows a trend well established in the UK, Australia, parts of the US and elsewhere, advocates mediation over litigation when viable. The new directive, expected to come into effect in August 2012 (there has been at least one postponement to date), stipulates mandatory mediation in the case of any civil matter headed for selected South African high courts.
Following the pilot, this same mandatory mediation stipulation is expected to be extended to all courts. Parties who refuse to participate face punitive cost orders.
The SA Rules Board for Courts of Law had been working on the proposal for seven years, says chief director and secretary Raj Daya, who is also SA’s deputy chief state law adviser who said last week that he expected SA’s Minister of Justice, Jeffrey Radebe, to formally gazette the document in about a month’s time.
The move marks the start of what some mediation advocates hope will be a broad societal switch from adversarial to collaborative.
There is a solution bigger than the problem.
“What you’re pushing and holding as a mediator is that collaboration is possible and that there is a solution bigger than the problem,” says Mark Collett, who has been doing mediation full-time since 2006 and part-time since the 90s.
“Essentially, going forward, attempts to resolve a litigious case via mediation will no longer be voluntary, as it is right now,” says Collett, currently the only full-time mediator in KwaZulu-Natal and a partner, with advocate Roger Knowles, in The Mediation Company, a Durban-based alternative dispute resolution firm currently training and accrediting mediators in anticipation of a huge spike in demand for mediators.
Labor knows about mediation.
Formal mediation in SA in the fields of labor management, dispute and grievance resolution, industrial relations, contract negotiations — and generally in unionized environments — has deep roots and an impressive international reputation.
“Labor knows about mediation. Labor mediation in South Africa is mature. It’s been hugely successful,” says Collett.
But SA has lagged in other areas where mediation has shown itself to be effective — even when it is prescribed by law.
There are currently 42 pieces of legislation in SA that either makes mediation compulsory as a dispute resolution mechanism or highly recommend it, says Collett.
“Over time, the legislatures seem to have followed a fairly conscious strategic plan to bring in mediation.”
A quirk of SA, however, was that while our actual legislation and policy around mediation is very advanced (along with our constitution), “there is quite a bit of drag between our policy and our implementation of it”.
So, says Collett, in 1995 SA signed the UN Convention on the Rights of the Child (generally defined as any human being under the age of 18 and in part requiring children to be involved in decision making regarding themselves). However the principles only got incorporated through relevant legislation in SA in April 2010.
“And on the ground, implementation is not necessarily happening,” says Collett.
Among other things, mediation lends itself to commercial matters, construction-related matters and family and divorce matters. Commercial matters might include mergers and acquisitions, issues around shareholding agreements, directorships, potential contracts, allegations of breach of intention in relationships, copyright issues and disputes between developers and contractors.
“The scope is fairly vast,” says Collett.
It allowed for more creativity.
Mediation especially made sense when time was of the essence and statutes had been in place in environmental and maritime law for years.
According to Daya, the proposed new system should see disputes more expeditiously and cost-effectively disposed of; an easing of the currently crowded court rolls; and preserving rather than straining relationships between litigators.
It allowed for more creativity, with options beyond the scope and functions of judicial officers. And, he said, the new rulings should also open up options to segments of the population currently excluded from litigation by financial restraints.
Internationally, mediation is known to work quicker than the courts, the solutions are more creative and therefore more sustainable, and it’s usually a lot cheaper. As things stand, a lot of people don’t to court because of the costs.
“People with claims of less than R120,000 are told it will cost more in legal fees, so you walk away,” says Collett. By serving a High Court summons, many of these people could be forced into mediation “and claims of between R20,000 and R120,000 could be better suited to mediation”.
Mediation was not just about saving on financial costs, said Collett. “The line manager in a factory, for example, could be distracted at least for the length of a dispute, which impacts productivity costs. So any arena where time is of the essence, where you don’t want to ruin the relationship between the disputing parties, and where money is an issue, mediation makes sense,” he says.
In Durban, typically you will wait on average three years to put foot in the high court for any opposed matter, says Collett. The new ruling would help address the load on the court as it diverts matters away.
As things stand, from moment a matter is opposed and the appearance to defend gets entered, “you’re going to wait three years to tell the judge,” says Collett. That’s one of the reasons mediation makes sense. Even a busy practice could possibly offer you a session within a month.
We have a lot of taboos.
“The new proposed court rules and the pilot cuts through all of that. It doesn’t matter what your matter is about, the proposed pilot is going to be run in high courts, so any matter opposed, parties will be required to go to mediation.”
Going forward, there would be a dispute resolution office at the court. “The Department of Justice wants a big panel of mediators. It is likely there will be a few thousand cases in Durban alone,” says Collett.
“The legacy of Nelson Mandela and what he saw possible for us as a genuine Rainbow Nation aligns with a culture that recognises mediation, rather than litigation, as the norm for dispute resolution,” says Collett.
“That’s how he dealt with things.
“I think as a society we are very defensive when it comes to conflict. We have a lot of taboos.
“This might be a bit philosophical, but one would hope that in changing our approach to solving disputes — and in many ways it’s a lot easier to say ‘just talk to my lawyer’ than to talk for oneself, which one does in mediation — we might as a society develop an assuredness that makes it possible to engage in conflict constructively.
“In mediation you don’t give up up who you are. It’s about win-win, not compromise (where someone always feels they’ve lost) or winner takes all. You don’t leave feeling bullied and you don’t bully someone else.”
© Wanda Hennig, 2012