Modelling Mediation: Evolving approaches to mediation in South Africa

“This article originally appeared in Track Two (Vol. 7 No. 1 April 1998) , a quarterly publication of the Centre for Conflict Resolution and the Media Peace Centre (South Africa).”

Mediation emerged in South

Africa through its use in labour disputes during the 1980s, but

remained suspect as a method to deal with political and community

conflict. Due to the dramatic changes following the release of

Nelson Mandela in 1990, mediation became not only acceptable, but

indeed quite popular.

With pre-election violence

on the rise, the National Peace Accord strengthened this

tendency, and introduced mediation as a tool for conflict

resolution to communities across the country through the various

peace committees established under its auspices. The demand for

training in mediation escalated, and the Centre for Conflict

Resolution (CCR) and its counterparts stepped in to meet some of

this demand.

The approach towards

mediation that CCR adopted was largely influenced by Ron

Kraybill, former director of training at the Centre and now based

at Eastern Mennonite University in Virginia, U.S. Kraybill came

to CCR in 1990 as the nationwide demand for mediation escalated

and the Centre was developing its mediation and training

services.

Kraybill favoured a

non-directive approach. This approach assumes that the best

solutions are produced when parties listen to each other in a new

way, and co-operate in the generation of options to arrive

jointly at the preferred solution. There should be no form of

coercion or manipulation by the mediators. The parties must solve

their own problems, because in this way their self-respect is

served and the outcome is more sustainable.

The role of the mediator

is therefore to be a facilitator of communication. The mediator’s

task is to enable the parties to listen to each other on a deeper

level than their previous hostile attitudes allowed. A mediator

must ensure that the parties have heard each other adequately,

and that each has developed sufficient understanding of the

other’s perceptions, motivations and interests. Improved

listening then leads to better mutual understanding, which

strengthens the imperative to reach an inclusive solution, as far

as possible taking the interests of all parties into

consideration.

In order to achieve these

objectives, the mediation process is served by a basic procedural

structure. This includes the establishment of process ground

rules by the parties themselves, ample time for storytelling,

uninterrupted time for each side to state their perceptions and

feelings, and joint problem solving. The mediators rely heavily

on their listening, paraphrasing and summarising skills, checking

continuously whether people have been correctly understood.

This approach has suited

South Africa well. Non-directive mediation is highly appropriate

in situations where parties need to cooperate in future because

the level of interdependence is high. It is also highly

appropriate in conflicts fuelled by basic differences in values

or world views. Under such conditions the emphasis of mediation

on promoting mutual understanding and on improving relationships

is to be preferred over approaches that rely on arbitration or

coercion.

In applying this approach,

however, South African mediators have found themselves struggling

with specific issues. These issues are certainly not unique to

the South African situation, but they have influenced our

understanding of mediation and its applicability. Three issues in

particular deserve comment namely, impartiality, dealing with the

emotional and psychological dimensions of conflict in the

mediation process, and mediation as a form of empowerment.

Why impartiality is

impossible

An almost dogmatic tenet

of CCR’s understanding of mediation is that mediators have to be

impartial. Impartiality is understood as an attitude that gives

equal respect to the parties involved and treats them with an

equal amount of fairness. It is deemed necessary because all

parties concerned need to trust the mediator. Without such trust,

the process of mediation cannot succeed. If one of the parties

perceives the mediator as partial they will probably withdraw or

disrupt the process in some way.

The problem faced by South

African mediators is that so many of the manifestations of

conflict at local level have their roots in the deep underground

of the general South African crisis. The struggle in South Africa

was (and still is) about justice for all, a fairer economic

dispensation, addressing grossly unfair historical socio-economic

imbalances and promoting genuine democracy. At a still deeper

level it is about the seemingly incompatible clash between the

basic human needs of different groups, such as the needs for

identity, security, participation, subsistence and freedom.

No single South African

can claim to be unaffected by the pull of these forces or by our

historical background. It is admittedly possible for some people

to put more distance between themselves and these issues than

others, but real impartiality is not possible. The strong

value-laden nature of so much of this condition – as well as the

deep emotions involved – make impartiality impossible. How

impartial can one be, for example, when the conflict is between a

squatter community fighting for their right to a place to stay

and officials bent on destroying their shacks in mid-winter? How

impartial can one expect a black mediator to be when one of the

parties around the table is a well-known apartheid stalwart?

Yet, in spite of this

dilemma, mediators have been successful and conflicts have been

solved. One of the theoretical ways to deal with this is to

emphasise the moral justifiability of the position of a

“process advocate”. The process advocate’s task is to

focus on the fairness and the effectiveness of the process of

mediation in the belief that through the dynamics of an

appropriate process, the parties will reach an understanding that

meets their needs and interests (and thus serves the demands of

justice and fairness).

This enables mediators to

suspend their own views and feelings for the duration of the

process. “Good process” becomes almost a value in

itself. Commitment to “good process” transcends the

more pressing emotions and values because of the inherent faith

in its ability to achieve a fair outcome. It boils down to a

distinction between moral impartiality (which is impossible and

unacceptable) and technical impartiality. Technical impartiality

refers to the mediator’s ability to treat all people with

respect, to manage the mediation process in a way that is fair

and even-handed, to listen deeply to what each party is saying,

to identify deeper emotions and needs, and, through the skill of

paraphrasing, to determine whether each party has been adequately

understood by all.

The emphasis on being a

process advocate, however, is not the complete answer. The extent

to which one’s perceptions of a “good process” are

influenced by one’s own deeper values and experiences is often

not acknowledged. Moreover, although the mediator may achieve

genuinely high levels of technical impartiality, in the final

analysis impartiality, like beauty, lies in the eyes of the

beholder. Impartiality is an allocated value – allocated to the

mediator by parties deeply entrenched in their own perceptions

and stereotypes. How impartial can a black group perceive a white

mediator to be, and vice versa?

There are also other ways

in which CCR has grappled with this issue over the years. Where

feasible it sought to deploy a balanced team of mediators (e.g.

one black mediator and one white), but in reality this was seldom

possible. There were instances where CCR mediators exercised

their option of withdrawing as mediators and moving into the role

of advocacy. This happened, for example, when mediating in an

ongoing taxi conflict which led to acts of violence and loss of

life. Because one of the parties to the conflict was perceived to

be defeating the purpose of finding a just solution, failing over

an extended period of time to stick to agreements and being

implicated in acts of violence, the mediators issued a statement

in which they declared their understanding of the situation and

withdrew as mediators.

In the final analysis

mediators need to be in touch with their own feelings and

recognise their own prejudices. Whereas impartiality remains

impossible, the negative effects of this situation can be

countered most effectively when mediators are aware of what is

happening in their own hearts and minds and are therefore able to

control it. The implication, however, is that the technical

ability to be impartial requires a level of psychological

maturity in the mediator. Training to be a mediator can therefore

never be only about acquiring technical skills, it has at the

same time also to be about personal growth and maturity.

The psychological

dimensions of mediation

A phenomenon faced

continuously by South African mediators is the recycling of

conflicts. A mediation session produces an outcome. Both parties

seem relieved and satisfied. A few months later, however, the

same parties are in conflict again. Different issues appear on

the agenda, but with strong indications that the conflict is

deriving its energy from the same deep emotional storage tanks.

It is as if every fight

that is fought taps its energy from the collective pool of anger

and fear built up during the centuries. Very few serious

conflicts are apolitical or completely stripped of the impact of

collective memories. In the South African context, therefore,

avoiding or neglecting the deep-rooted emotional aspects of

conflict results in recurrent conflict and an increasingly

irrational aspect to it.

Three years ago a town in

the Southern Cape was hit by a strike of municipal workers on

remuneration issues. The workers were organised in two labour

unions, one mostly supported by black workers and the other by

white workers. This strike was by the black labour union and it

became ugly. Rumours of threats against people’s lives and

property abounded. The municipal building was smeared with human

faeces at one stage. There was absolutely no love lost between

the workers and management and, more importantly, between the

workers and those organised by the other union.

When an agreement was

reached between the union and management, the largely white union

threatened to go on strike because they thought that the other

union was getting away with unacceptable behaviour and that an

injustice was done. Eventually the situation was defused and all

went back to work, but relationships were not restored. In spite

of attempts to encourage the municipality to pay attention to

this aspect, it was ignored.

Levels of frustration

remained high. A significant number of officials reported

stress-related illnesses, the labour union frequently embarked on

obstructionist activities (the town clerk was kept hostage in his

office twice in the past year), and productivity fell as did

public perception of the municipality’s performance. Solutions

were being sought on the level of pay packages and disciplinary

procedures, but the anger obviously was not going to go away.

The one outstanding lesson

from this experience is that mediation should not be terminated

once a superficial settlement is achieved. In order to resolve

the conflict the mediators have to create a safe space where

participants can talk openly about their past experiences and

about their anger and fear. The purpose is to encourage the

growth of mutual understanding and trust – vital ingredients for

the success of any corporate enterprise. Mediation in this

context should therefore be viewed as a long-term process which

should not be terminated at the moment of a settlement, and which

cannot avoid dealing with fundamental emotional and psychological

issues.

There are two practical

realities that prevent the implementation of a long-term

approach. The first is the aspect of financing. Parties are

normally so relieved to achieve some form of settlement that

defuses the situation, that continued expenditure of time and

money in the process ceases to be a priority. Secondly, mediators

are not necessarily equipped with the therapeutic skills to deal

with the deep emotional underground of such conflicts. Training

in mediation tends to emphasise technical skills and to neglect

the equally necessary training in counselling skills.

A related issue is the

care given to the psychological well-being of the mediator.

Mediators are subjected to particular kinds of stress. A

mediation session in itself is very stressful because of the

demands it places on the mediators to stay calm and deal with

strong emotional undercurrents (and explosions) between the

parties. It becomes particularly stressful when the conflict out

there is nothing but an outward manifestation of an internal

struggle. If, for example, the conflict has overtones of racism,

it inevitably feeds on the internal struggle of the mediators to

come to grips with the effect of racism on their own lives.

The implications are

twofold. Firstly, it emphasises the need for mediators to have

their own safe space for dealing with their internal struggles

and to be open about the effects of certain situations on them.

Conflict resolution centres such as CCR would do well to give

much more urgent priority to this aspect than is currently the

case. Failure to do this will not only have an effect on the

quality of the performance of mediators in the field, it will

also avenge itself on the internal well-being of the

organisation.

Secondly, there are

definite implications for training. Training would-be mediators

in different skills without paying serious attention to

self-awareness and personal growth will leave them unequipped to

deal with the most difficult aspect of mediation. Even at the

level of role playing it is demonstrated again and again how

easily mediators become emotionally affected by a conflict if

they are not aware of their own vulnerabilities.

Empowerment

The inherent ability of

mediation to create greater equality in power relationships is

one of its major attractions. By establishing ground rules for

discussions that govern all parties in the same way, by allowing

each party the freedom to tell its story, by introducing

mechanisms to check whether each party’s position has been

adequately understood by all, and by sitting around the same

table without the more powerful party being in charge of the

discussions, the outward trappings of equality or of a level

playing field are established.

Consider, for example, the

scene where an illiterate and unskilled farmworker sits across

from the farm-owner at a table discussing the fairness of the

farm- owner’s plans to demolish the worker’s dilapidated house.

The discussion happens on a level not before possible because the

mediator creates a safe atmosphere where the farmworker can

express his feelings and ideas. Or, another example, where

leaders of a squatter community meet the officers in charge of

the local police and discuss relationship issues, expressing

their feelings and frustration with what they perceive as bias by

some police. These discussions could of course happen without a

mediator. The process managed by the mediator, however, creates a

sense of safety for the relatively disempowered and encourages

the expression of ideas and feelings in a way that enhances the

potential of good communication.

There can be no doubt that

the mediation process empowers the relatively disempowered. This

fact, however, creates a dilemma – because it is precisely its

potential to equalise relationships that raises suspicions in

those in authority. Conflict resolution is and should be an

aspect of good governance. It is the job of those in power to

deal with conflicts. If outsiders intervene and call the

authority to a table as an equal partner, it either gives the

impression of a vote of no-confidence in the authority’s ability

to govern or it smells of an attempt to undermine the authority.

The challenge, therefore,

is to promote mediation as an approach that shows great potential

in the South African situation precisely because it equalises

power relationships, but at the same time to avoid undermining

the legitimate role of government to exercise its authority.

One way of dealing with

this dilemma is to emphasise training. There is a growing

realisation at CCR that the deepest form of empowerment takes

place when the knowledge and skills necessary for constructive

conflict resolution are transferred in a way that enhances

indigenous understanding. Johan Galtung (1996) has defined peace

as the context for conflicts to unfold non-violently and

creatively. Empowerment for peace means, therefore, that people

should be enabled to react non-violently and creatively to

conflict by raising the awareness of alternative approaches.

Non-directive mediation is one such alternative, and its

potential to promote peace will be enhanced considerably if it

becomes a tool of the people.

Mediation and the skills

that accompany it should therefore become an aspect of common

culture, rather than an elitist profession. At CCR there is a

growing emphasis on providing training for people who find

themselves in conflict situations rather than on mediating the

conflict. Such training targets “ordinary” citizens as

well as government officials.

The training is largely

based on an elicitive approach. This means that participants in

training workshops bring their own insights and experiences to

the workshop. The methodology used is to reflect on these

experiences, draw lessons from them collectively and review past

thinking and actions in the light of these lessons. This approach

holds the best guarantee that indigenous wisdom and experience

will be recognised. At the same time, however, the shortcomings

of traditional approaches become clear as their appropriateness

to deal with conflict is reflected upon.

Non-directive mediation

(as well as training in mediation) holds a lot of potential for

developing a culture of peace in South Africa. Its success,

however, does not solely depend on the technical skills that come

with the approach, but also on the way that mediators succeed in

dealing with the tensions and dilemmas that go with being a

mediator in South Africa. Success also depends on the ability of

training institutions such as CCR to make this approach

accessible to all communities.

                        author

Laurie Nathan

Laurie Nathan is executive director of CCR. Founded in 1968, the Centre for Conflict Resolution(formerly the Centre for Intergroup Studies) is an independent institute which seeks to contribute towards a just peace in South Africa and elsewhere in Africa by promoting constructive, creative and co-operative approaches to the resolution of… MORE >

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