On December 1, 2014, commercial mediation gets a foot in the door of the civil justice system when court-annexed mediation kicks off in South Africa. Following on the international trend in the UK, US, Ghana, Lesotho and Uganda, exciting new opportunities are available for the legal profession. Not only to refer to and represent clients at court-annexed mediations, but also to offer mediation services. If the profession does not make use of these opportunities it may find itself playing catch up with other professions who are keen to get involved.
Litigation, including the right to appeal and review decisions often creates frozen conflicts that can last up to ten years before legal finality is reached. Frozen conflicts are costly, in fact far more costly than the legal fees paid to resolve them. They are costly because the people involved in frozen conflicts are traumatised and distracted from healthier and more productive pursuits. Lawyers who have advanced conflict resolution skills to complement their legal skills understand the benefits of mediation. They know when it is in their clients’ best interests to follow a less adversarial approach and understand how mediation can resolve frozen conflicts. Most would have undergone training as commercial mediators, even if they do not work as mediators. South African universities, including UCT, offer such commercial mediation training for the legal profession.
Court-annexed mediation becomes available at several magisterial districts across South Africa on 1 December 2014. It is a significant step towards professionalising mediation. Lawyers or any other professional who wish to offer mediation services have to satisfy the Department of Justice that they attended a training course in compliance with the norms and standards prescribed by the Department. Court-annexed mediation is also a significant step towards institutionalising mediation in South Africa. Before saying more an adapted story about an incident at one of Cape Town’s luxurious Sectional Title Schemes needs to be told.
Sectional Title ownership is a common form of residential ownership in South Africa. As a form of communal ownership conflict and disputes are commonplace. Owners volunteer their services as trustees for no payment and expect nothing more than the sincere appreciation of the other owners. But keeping 150 unit owners satisfied requires a thick skin and of course the ability to weigh up everyone’s interests and concerns. But no one’s perfect and at the Cape Town Scheme two trustees found themselves caught in a frozen conflict over special levies. The conflict first divided the trustees and then the owners at the Scheme, escalating into a deadlock between two warring factions. The Scheme soon became ungovernable and to break the deadlock, various costly court applications were launched, including an application to place the Scheme under administration.
A fortuitous incident one Monday morning at the Scheme however changed everything. The two trustees found themselves in the uncomfortable position of getting into the same lift. Without acknowledging each other’s presence they watched the doors close and felt the lift slide down from the 12th floor. Then suddenly with a sickening sound their lift came to an abrupt halt between the 11th and 10th floor. It stayed stuck there for two hours - perhaps the most fortuitous two hours of their lives. For in those two hours they resolved a two-year long frozen conflict by talking to each other – person to person.
It is naturally naïve to believe that talking always resolve disputes – human nature is far too complex and unpredictable for that – but the lift anecdote illustrates that everything becomes possible, if only people in conflict talk to each other. South Africans after all averted a bloodbath by talking, despite the incredibly high stakes, layers of complexity and deep mistrust of the other. They settled because they had started talking to each other and found ways to address the fears and concerns that held them apart. The parties in a commercial dispute also benefit from talking in the confidential and without prejudice environment of commercial mediation.
The new mediation rules institutionalises mediation by creating an innovative two step process: Any party in a dispute may, before or after summons has been issued, request the clerk of the court to invite the other party to a mediation conference to discuss the possibility of mediation. The conference does not cost the parties anything, nor forces them to take the next step to mediate, but it creates an opportunity for them to talk then and later again at mediation. It gives mediation a foot in the door of the civil justice system, despite the voluntary or autonomy-sensitive nature of the rules. It is unthinkable that mediation will not in the near future also be institutionalised at the higher courts.
The purpose of mediation is to get the parties to talk in an environment facilitated by a mediator. The talking occurs in a safe, private and confidential environment. It does not compromise the parties’ rights or the merits of their cases. The mediator, sometimes his mere presence, de-escalates the conflict setting the tone for the parties to talk. He employs skills such as summarising, reframing and open-ended questioning to develop rapport with the parties. He helps them explore their own and the other party’s underlying concerns and interests, without commenting on the merits of the concerns. If the parties get stuck he helps them apply their minds to the potential risks if the dispute is not resolved. The mediator helps the parties generate options or solutions for the conflict, always mindful that he runs the risk of losing their trust if he had to evaluate options.
Traditionally lawyers handle negotiations during litigation, which seldom offer opportunities for the parties to talk in person, as illustrated by the lift anecdote. In mediation the clients do the talking but it does not leave their legal representatives out in the cold. Clients always look to their trusted advisors, their legal representatives for guidance on how to conduct themselves during mediation. Thus the value of legal representation remains fully recognised and unchallenged.
In creating opportunities for parties in conflict to talk to each other, whether successfully or not, the court-annexed mediation initiative of the Department of Justice is breaking new ground. It deserves the full support of everyone concerned about frozen conflicts, including the legal profession in South Africa.