2. 2
SYNOPSIS
A Case for Mediation: a dispute resolution alternative that drastically
reduces time and legal costs whilst saving relationships is written with
the idea of creating awareness about the value of mediation in resolving
disputes and conflicts. The following sectors of society are set to benefit
from such awareness and therefore increased use of mediation:
The public sector: The government spends billions of rands in
legal costs when sued for one or other failure in delivery of
services including allegations of medical negligence. Workplace
mediation, one of the types of mediation, presents unique
opportunities for resolution of conflicts which occur at the
workplace which otherwise would be so protracted and disruptive
as parties to the conflict become so absorbed and lose focus on
their core responsibilities. An example of workplace conflict that is
highly disruptive to the Government programme I highlight in the
book is the perennial one between the Government Ministers and
the Administrative Heads of their Departments which is reported
often in the news media.
The private sector: Often the business transactions end in
dispute either in disputed terms of contract or the final product.
The disputes end up in courts and clog the court rolls. In the
book, I give extracts of conversations and/or reports about how
much courts are burdened by disputes which would otherwise be
resolved quicker and cheaper had the disputants chosen the
mediation as an alternative to litigation. Mediation saves businesses
from the reputational risk were they to lose the case in court.
Communities: We have witnessed community disputes reported
where members of the same community fight with their elected
representatives at the local level of government because of
dissatisfaction with one thing or the other. Sometimes these
disputes result in destruction of property, arrests and loss of life.
The book promotes mediation at this level of governance with a
view to nip these problems in the bud. Mediation is uniquely
placed because the manner it is conducted promotes relational
repair hence relationships get saved.
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Families: When there is a dispute in the family, familial bonds are
damaged. In the book, mediation is presented as the best option to
resolve such disputes to restore those bonds. Also when the
marriage breaks down, there is invariably such strife that the
affected parties become traumatised. Where children are involved,
they are left scarred for the better part of their lives. Mediation
helps parties to confront their issues in a manner that provides
each side an opportunity to present its needs and interests as well
as acknowledging the hurts that have been experienced. This
presents an opportunity to make amends and therefore improve
the relationship. Parties in mediation actively seek a win-win
resolution to the problem themselves without the third party
imposing decisions on the disputants. Parties end up with a
solution that they own.
The book is written in a less theoretical way as to present mediation in
day-to-day circumstances of human existence. It is structured such that
each benefit of mediation is captured with examples in each chapter.
Some of the Chapters explain the processes involved in mediation and
what the role of the mediator is to facilitate the discussion between
parties.
The book can be marketed to government at national, provincial and
local levels, business, community leaders, churches as well as universities
as it presents value to all these sectors.
CHAPTER ONE
A CASE FOR MEDIATION
This book makes a case for mediation as the quickest
and cheapest dispute resolution alternative that
drastically reduces time and legal costs whilst saving
relationships. John Brand addressing the Conference on
Alternative Dispute Resolution in Cape Town in
4. 4
November 2013 says 94% of surveyed mediators
identified “Lack of awareness of mediation”1
as an
obstacle to successful use of mediation as an
alternative dispute resolution mechanism inspite of its
benefits.
What is Mediation?
Mediation is defined by authorities in the Alternative
Dispute Resolution (ADR) processes in various ways,
but all embrace the following sentiment: Mediation is
an ADR process during which the mediator, an
impartial third party, assists parties in dispute in
reaching a mutually acceptable agreement2
through the
use of negotiation process3
.
The South African Experience
Although the traditional systems of dispensing justice
in South African were premised on mediation as a
process for resolving disputes, this process lost its
appeal in South Africa as traditional communities
became influenced by anything “western”. Mediation
became popular in South Africa to resolve political
disputes during the negotiation process for a political
dispensation. With the failure of the apartheid system,
the Convention for a Democratic South Africa
(CODESA) was established. Mediation in resolving
employment disputes grew over time since the
Independent Mediation Service of South Africa
(IMSSA)4
and later the Commission for Conciliation,
Mediation and Arbitration (CCMA) were established in
the new democratic South Africa. However, mediation
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in workplace disputes in South African could be even
more beneficial if it were to be introduced sooner,
before the disputes become destructive to workplace
relationships. Mediation might well have prevented the
Marikana tragedy which occurred through the failure to
resolve on time the labour disputes in the platinum
mining industry in August 2013.
South Africa is far behind other countries in the use of
mediation to resolve commercial disputes. Disputants
readily resort to the courts of law to litigate and assert
their rights whenever disputes arise from their business
transactions or contractual obligations. In the public
sector, those who seek to challenge government’s
policy decisions or poor service delivery, tend to resort
to violent protests destroying property, failing which
going straight to the courts of law instead of seeking to
resolve such matters through alternative dispute
mechanisms such as mediation. According to the South
African Minister of Justice (hereafter the Minister),
courts’ rolls are congested5
, therefore it usually takes a
long time to resolve matters before them.
In an attempt to alleviate the workload of the law
courts, the Minister promulgated court rules that seek
to coerce litigants to subject their disputes to mediation
first, leaving litigation as a last resort. He is now
testing the viability of mediation in court referred ADR
through pilot courts.
Citizens’ rights in the South African Constitution
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The South African Constitution guarantees the right of
every citizen to have any dispute heard and decided in
a fair public hearing by a court of law or an
independent and impartial tribunal (Section 34 of the
Constitution of Republic of South Africa Act, 1996).
It is common cause that South African society is very
unequal, with access to the courts of law to resolve
disputes unaffordable for the majority. The court rules
referred to above seek to make justice accessible to all
South Africans by providing for a cheaper and quicker
option to resolve disputes by way of mediation before
resorting to litigation in the courts.
The same concerns about the congested court rolls and
the inaccessibility of justice for poor are the reasons
that led to the reforms in the justice system of the
United Kingdom6.
This led to the introduction in courts
in the United Kingdom of alternative dispute resolution
mechanisms as a first option before litigation.
Forms of dispute resolution
There are two main streams of dispute resolution. One
stream consists of those approaches which assert the
legal rights of individuals and they are referred to as
rights-based dispute resolution mechanisms. The most
commonly used forms of rights-based processes of
dispute resolution are litigation and arbitration.
Disputants go to court to seek a binding decision of a
third party either a judge (litigation) or an arbitrator
(arbitration) in which the third party adjudicates and
decides a winner and a loser. Disputants have no
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control of the outcome as it is decided by a third party.
Often their case is argued by representatives and the
disputing parties are hardly provided an opportunity to
“say their say”. Their interests and needs might easily
become secondary to the process of arriving at a
verdict.
The other stream asserts the interests and needs of the
disputants. The question of who is legally right or
wrong does not matter. These approaches to conflict
resolution are referred to as consensus-oriented7
or
joint problem-solving8
processes to dispute/conflict
resolution. The features of these approaches will be
explored further in the following chapters. The most
commonly used form of consensus-based processes of
dispute resolution is mediation and negotiation.
The key difference between these two main streams of
dispute resolution lies in the control that the parties in
dispute have or do not have over the outcome.
In the mediation process, parties are in complete
control of the outcome and the emphasis is on parties
seeking a settlement in which all parties come out
winners, as against the “winner-takes-all” outcome of
the litigation and arbitration processes. The mediation
process promotes consensus and joint problem-solving
as parties seek mutually beneficial outcomes.
It is not surprising that the mediation process was
made the first option to resolve disputes as a result of
the UK legal reform. South Africa’s new rules now
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make provision for courts to refer disputes to mediation
before litigation.
From all the definitions of mediation offered by a
number of experts, the following stand out as the key
features of the mediation process:
It is facilitated by an impartial, neutral and
independent third party, referred to as the
mediator, who does not pronounce any
judgement on the merits or otherwise of the
parties’ cases;
Two or more parties come together to find a
mutually acceptable settlement to their dispute, a
win-win outcome;
Parties voluntarily subject themselves to the
process of mediation. However in mediation
ordered by a court of law, the argument could be
raised that it is not entirely voluntary and that
there is an element of coercion;
The process is based on interests and needs
rather than on legal arguments of who is right or
wrong. It is a joint problem-solving process;
Parties are in control of the outcomes, unlike in
the other dispute resolution mechanisms where
the outcome is dependent on the decision of the
Presiding Officer (Judge or Arbitrator);
What takes place and what information is gained
in the mediation process is confidential and
private. It remains within the confines of the
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mediation process and may not be used as
evidence in processes outside the mediation. The
mediator may not disclose what s/he is told in the
side meetings or party caucuses s/he holds with
either party unless s/he has the express approval
of either party to share pertinent information in
the facilitation of the mediation process. The
mediator may also not be called upon to give
evidence by either party in processes outside the
mediation process;
The mediation process is flexible and informal.
Although the mediation process follows a
structured format, the format is not rigid. The
structure is intended to keep the process on track
and to ensure that all bases are covered. The
process is flexible and allows for parties to
introduce, at any of the stages, those issues that
are material, even if these were not among the
issues stated at the beginning. The process also
can move backwards and forwards on the various
steps if need be until an outcome is reached and
signed off by all parties;
The mediation process is without prejudice. This
means that parties in mediation reserve their
rights to resort to litigation or other alternative
dispute settlement mechanisms should the
mediation fail to produce a mutually agreed
outcome. This characteristic, however, is
guaranteed with clear acknowledgement that the
information acquired during the mediation process
10. 10
will not be used in any other dispute settlement
processes.
