Jacques Joubert is a practicing mediator and independent mediation analyst in South Africa He practiced law in South Africa and Canada, but now specializes in alternative dispute resolution.
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Bringing the Human Face to Conflict
Mediation may be described as a process that evolves over four different phases. It begins in a joint session and ends in a final joint session.
Ambiguity and Mediation
Some time ago I acted pro deo – instructed by the state but literally meaning for God – for a client who was on trial for murdering his victims with the heavy wooden handle of a pickaxe. It was a difficult case, but I learned a lot about high conflict mediation.
Mediation Will Get its Foot in a South African Door
A fortuitous incident one Monday morning changed everything for two disputees. 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. 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.
When an Apology Sets the Tone of a Dispute in Mediation
For commercial mediators it is obvious that commercial interests such as the need to make a profit are the most important incentives for the parties to settle, in the context of course of their legal rights. But in practice and in theory, attention to psychological or personal interests (e.g. reputation, autonomy, status or acknowledgement) is often key to resolve commercial disputes.
Judicial Activism Essential to Make Mediation Mainstream in South Africa
Courts in the UK impose cost sanctions on parties who unreasonably refuse or fail to mediate. In the US, mediation is more firmly embedded in the litigation process, the courts applying varying degrees of coercion to encourage the parties to participate in mediation. In some US states, disputes that fall in a certain category have to be mediated before being litigated. In other states, judges have the discretion to order the parties to mediate. The goal of the UK and US approaches is the same: the optimal use of mediation by litigants and less reliance on adjudication.
The Best Mediation Secrets
Naturally not all clients are expected to be amenable to mediate their disputes, but if given the choice, they will be fully responsible for getting on the path to the courthouse of the mediation table. The clients will be able to make an empowered decision, and attorneys can rest knowing that their clients had enough information to make the right choice for them. This author shares his views on this from the mediation world in Cape Town.
Lessons in Mediation from Nelson Mandela
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. This speech helped to usher in skills of peace and negotiation.
Standing on the Shoulders of a Visionary
The article is about Mary Parker Follet’s convergence of dispute resolution, organisational development and leadership concepts. Follet integrated the idea of organisational conflict into management theory and is sometimes considered the "mother of conflict resolution." Peter Drucker called her the “prophet of management.” Drucker himself is acknowledged as a pioneer in organisational development and modern management thinking.
History of Warfare, Litigation, and the Mediation Bonus
The article is about Napoleon's invasion of Russia and the Battle of Borodino 200 years ago and the similarities between warfare and litigation. Napoleon said a man would fight harder for his interests than for his rights. So how does this affect our understanding of mediation?
Social Media is Game Changer for Ubuntu and Mediation
The article is about the impact of social media on companies, and how they need to tune into this new reality by mediating stakeholder disputes. Companies also need to be aware of ethical considerations in their relationships with stakeholders. Finally the author discusses the relationship between Ubuntu and mediation.
Embedding Mediation in South African Justice
This is a perspective on the future of mediation in South Africa. It discusses the flaws and benefits of the current system, as well as anticipated developments in the future.