In the hit television serial “The Mentalist”, the main character walks into a house with a policeman. The policeman does not have a warrant to enter the house. A gang of drug dealers confronts them inside the house. The leader and the cop draw their guns. A deadlock ensues with the policeman and the leader screaming at each other to put their guns down.
The Mentalist steps in to explain to the gang leader that should he win, he would be branded a cop killer and pursued mercilessly. The Mentalist then turns to the policeman reminding him that he is inside the house without a warrant, and should he pull the trigger first and win, he would loose his badge.
In this example the Mentalist draws on his skills as a mediator, breaking the deadlock between the policeman and the gang leader by explaining to them that winning is not cost-free. The same often applies to legal, political and personal disputes. The downside of winning is ignored in the heat of political, legal and personal disputes.
Mediation is of course not a foreign concept in South Africa with its rich heritage of the African humanist philosophy known as Ubuntu. Many will argue that mediation helped persuade the apartheid government to make peace with the ANC. It is when disputants realize that winning is not the best and only option for them, that they apply their minds to negotiating a settlement. In South Africa the white minority realized that their concerns and fears could best be addressed in a bill of rights in a constitutional democracy, and the black majority realized that winning, after an all-out civil war, was not their best or only option.
Judge Colin Lamont expanded recently on the definition of Ubuntu in a ruling on hate speech in the Julius Malema case:
“Ubuntu is recognized as being an important source of law within the context of strained or broken relationships amongst individuals or communities and as an aid for providing remedies, which contribute towards more mutually acceptable remedies for the parties in such cases. Ubuntu is a concept which, inter alia dictates a shift from (legal) confrontation to mediation and conciliation”
In keeping with Ubuntu the new South African parliament has passed 40 statutes containing mediation provisions. The King III Report on corporate governance sees mediation as a vital tool in the management of stakeholder relationships. Stakeholders include employees, customers and communities affected by a company’s operations and business. Companies, who fail to mediate disputes, may now be requested by their stakeholders to explain why they ventured straight to court, before first trying to resolve their disputes through the mediation route. In line with King III, the Institute of Directors of South Africa recommends the following best practice to resolve disputes:
Labor, community and family mediation is relatively well established in South Africa. Despite the above statutory and corporate governance initiatives creating ample space for mediation, the mediation of other, including commercial disputes are by no means commonplace. Ignorance about the nature and role of mediation is partly to blame for the failure of mediation to be more widely used as an additional and important tool to resolve disputes. The space to watch is the development of business mediation to resolve disputes between businesses, before lawyers step in to define the dispute in terms of legal principle and precedent.
Mediation service providers in South Africa have taken the first step towards professionalizing mediation, by forming the Dispute Settlement Accreditation Council (DiSAC), which has been tasked with developing Uniform Accreditation Standards for the profession. It is hoped that DiSAC` will prescribe that mediators should have a minimum level of competency to effectively mediate disputes requiring specialist knowledge. Medical negligence disputes between health providers and patients, for instance require mediators who understand complex medical protocols and surgical procedures. It is unclear how a mediator with a degree in business science, would be able to add enough value to resolving such a dispute. Commercial mediation courses in South Africa presently offer a sound foundation for interest-based mediation, but may inadvertently be contributing to the notion that a commercial mediator per se isable to competently mediate any form of dispute. Attorneys and their clients participating in mediation may not afford respect to mediators who have no competency in the field in which the dispute arose.
Against this background and with the civil justice system increasingly pricing itself out of reach of most people, thereby limiting access to justice, the Department of Justice recently released a draft set of Mediation Rules, foreshadowing the implementation of mediation pilot projects at our courts from 1 April 2012. The rules are flawed; yet herald an exciting new era for mediation in South Africa. One flaw is that the rules bar attorneys from attending court-based mediation. It is unthinkable that an attorney could be barred from protecting the client’s interests during the mediation, and this will hopefully be revised, before the commencement of the pilot project.
The Mediation Rules embed mediation in the civil justice process by providing that the filing of a notice of intention to defend, automatically activates mediation. In Canada court based mediation is activated by a request to mediate, filed by one of the parties, with legal consequences for a party who refuses to participate in the mediation. This distinction is significant. Canada is a rich country and invests heavily in its civil justice system, yet Canada has chosen not to embed mediation in its civil justice process. It is assumed the sheer volume of cases, capacity concerns and the costs involved in embedding mediation, are behind Canada’s approach to court based mediation. I am reminded however of the words of the Roman scholar, Pliny the Elder: There is always something new out of Africa. (Ex Africa semper aliquid novi”.) South Africa could become a global thought leader in court-based mediation, by embedding mediation in the civil justice process. It may however also be overly ambitious, and result in attorneys and clients paying lip service to a process facilitated by ill-equipped and inexperienced mediators.
(Editors Note: I recently interviewed Kenneth Feinberg for Mediate.com about his career over the last 30 years. He has managed the settlement of complex and difficult claims in the wake...By Robert Benjamin