In 1964, George Bizos, a young lawyer, probably saved his client and good friend Nelson Mandela’s life by persuading him to change his now famous speech at the Rivonia treason trial. After making the point in his draft speech that he cherished the ideal of a free and democratic society for all South Africans, Mandela wrote that it was an ideal that he was prepared to die for. Bizos realised that to tell the Apartheid court that he was prepared to die for this ideal may be to challenge it to sentence him to death. Mandela stuck to his guns, but Bizos managed to persuade him to write the now famous words, ‘It is an ideal which I hope to live for and to achieve. But, if needs be, it is an ideal for which I am prepared to die.’ The key words ‘if needs be’ ensured that the judge and the Apartheid regime would be fully responsible for the death sentence – leaving little room for them to argue that Mandela was seeking martyrdom. (Source: Times of 25/09/2013)
The American author F. Scott Fitzgerald believed the test of intelligence to be the ability to hold two opposing ideas in the mind at the same time, and still retain the ability to function. Mediation challenges participants to move beyond the either/or dichotomy and to appreciate ambiguity where appropriate. It explains how Mandela was able to say two opposing things at once at the Rivonia trial: the hope to live for and the willingness to die for the same ideal. On closer inspection, the ability to hold two opposing ideas in the mind formed part of the sophisticated negotiation strategy adopted by Mandela when he negotiated the end of Apartheid 27 years later. It allowed him to reframe Apartheid as the prison of not only black South Africans but also of white South Africans. Reframing resets the lens with which one views reality and is a technique often used by a skilled negotiator and mediator to help parties resolve commercial disputes. It is also a technique for leaders who aspire to build bridges.
The National Prosecution Authority’s directives expect public prosecutors in South Africa to resolve less serious offences by way of informal mediation as prescribed. Woza Mediation in association with Grant Gunston Attorneys recently trained 120 prosecutors in mediation skills for the Department of Justice. Mark Wakefield, Chief Prosecutor of the Wynberg Magistrate Court, and Prosecutor Gabriela McKellar had the vision and the energy to make this groundbreaking training possible. In this context, informal mediation is victim centred and the neutrality of mediators is less important than neutrality in the classic model of mediation. It is victim centred, but at the same time attempts to synchronise the interests and the concerns of the victim, the offender and the community. Like Mandela it profoundly challenges, where appropriate, the either/or dichotomy of victim and offender. To accept informal mediation by prosecutors, mediators trained in the classic model of mediation have to place less emphasis on the neutrality of the mediator. It is simply not feasible to use external mediators in the resource-restrained environment of the South African criminal justice system.
In a future article Woza Mediation hopes to tell how a public prosecutor, inspired by informal victim-offender mediation, has literally transformed her court into a community court. She began by resetting her lens to place less emphasis on prosecution and more on the best interests of the victim and offender, who in most cases, know each other and are members of the same community.
Public prosecutors in South Africa are walking in the footsteps of Nelson Mandela when they use informal mediation at their courts.