MEDIATION AND THE CIVIL JUSTICE SYSTEMProBono.Org

Presented by John Brand and Martin Brassey – 6 July 2011

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INTRODUCTION

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OUTLINE

•Mediation defined

•Overview of international change

•Why the change?

•What about South Africa?− Have we changed?− Mediation Heritage− The Mediation Renaissance− What is being done and what needs to be done in South Africa?

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MEDIATION DEFINED

Mediation is a process in which an independent third party helps the parties to a dispute to try to reach agreement

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INTERNATIONAL OVERVIEW

•UNITED KINGDOM

− Rule changes in 1999− Case law – Railtrack− Government pledge− Ethical duty− Business support from the CBI and 80 major companies− 220 law firms gave support− +- 3000 commercial disputes mediated in London each year

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INTERNATIONAL OVERVIEW

•UNITED STATES

− 1500 law firms pledged to support ADR before litigating− 800 companies including Time Warner, UPS, General Electric, the Prudential and Coca

Cola pledged to support ADR before litigating− Mediation is mandatory in States such as Oregon, California, Texas and Florida− JAMS handles over 10 000 cases a year− Whereas 11% of civil cases went to court in 1962 now only 2% go− The number of federal court cases that go to trial has dropped by nearly 4/5

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INTERNATIONAL OVERVIEW

•EUROPE

− Active Mediation in France Sweden Italy GreeceDenmark NetherlandsFinland Spain Ireland PortugalGermany Norway

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INTERNATIONAL OVERVIEW

•EUROPE

− Emerging mediation inRussiaBosniaSloveniaCzech RepublicSlovakia

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INTERNATIONAL OVERVIEW

•EUROPE

− The European Commission has issued a directive to harmonise European mediation

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INTERNATIONAL OVERVIEW

•ASIA AND THE MIDDLE EAST

− Established or emerging inSingaporeHong KongChinaThailandJapanBangladesh IndiaSaudi Arabia Israel

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INTERNATIONAL OVERVIEW

•Also established in

− Australia and New Zealand

− South America

− Nigeria

− Ghana

− Mauritius

− Tunisia

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WHY THE CHANGE?

•COST OF COMMERCIAL CONFLICT

− A 2006 study revealed that conflict in British business cost some £33 billion a year (less than 1/5 went to lawyers)

− UK research shows that a £1 million value dispute will burn up over 3 years of line managers’ time

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WHY THE CHANGE?

•PROBLEMS WITH LITIGATION AND ARBITRATION

− Delay

US research shows that even arbitration takes an average 16.7 months from the filing of a complaint to an award

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WHY THE CHANGE?

•PROBLEMS WITH LITIGATION AND ARBITRATION

− Expense

“The Bank of Credit and Commerce International’s lawsuit against the Bank of England lasted 13 years and cost £100 million in legal fees. The Bank of England’s governor disgustedly described it as “the most expensive fishing exercise in history” … Mr. Justice Tomlinson called it “a farce”. Had the parties agreed to mediation it would have taken probably a day and cost just a few thousand pounds” – The Economist

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WHY THE CHANGE?

•PROBLEMS WITH LITIGATION AND ARBITRATION

− Limits of legal solutions

− Unpredictable

− Backward looking

− Win / lose outcomes

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WHY THE CHANGE?

•PROBLEMS WITH LITIGATION AND ARBITRATION

− Harm to relations

− Rights focus

− Quality

− Access to justice

− Publicity (litigation)

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ADVANTAGES OF MEDIATION

•SPEED

− CEDR in the UK estimates that of the +- 3000 commercial disputes mediated in London each year 70 – 80% are settled within one or two days and a further 10 – 15% within a few weeks

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ADVANTAGES OF MEDIATION

•Control over process and outcome

•Cost

•Positive impact on relationships

•Creativity

•Addressing of needs

•Addressing of causes

•Management of complexity

•Delivering mutual gain outcomes

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ADVANTAGES OF MEDIATION

•Bridging mistrust

•Bridging poor communication

•Bridging lack of skill

•Success – generally an 80% to 90% settlement rate

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WHAT ABOUT SOUTH AFRICA?

LIKE A CHEETAH

SPRINTING AHEAD

OR

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WHAT ABOUT SOUTH AFRICA?

LIKE RIP VAN WINKEL

SLEEPING THROUGH A REVOLUTION

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MEDIATION HERITAGE

•Mediation has a long history in South Africa

• In traditional African communities− A sanction was seldom invoked for a breach of customary law− Agreed corrective mechanisms were the primary means of conflict resolution− At the core of traditional African dispute resolution is

‘Ubuntu’ in Zulu and Xhosa ‘Botho’ in Sotho ‘Ubuthu’ in Venda

“People are people through other people”

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MEDIATION HERITAGE

• In traditional African communities (cont)

− Emphasis on community building, respect, sharing, empathy, tolerance, the common good, acts of kindness

− Emphasis on the “C’s”, communication, consultation, compromise, co-operation, camaraderie, conscientiousness and compassion

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MEDIATION HERITAGE

•The impact of colonialism

− Colonialism disrupted this tradition because of Western emphasis on adjudicative outcomes

“whites, by and large, are individualistic exclusivists. When managing conflict, therefore, we prefer to apply win/lose tactics, clear cut and defined structures and procedures. Mostly we alienate ourselves within conflict situations leading us to enter into ‘negotiations’ in order to control the outcome of ‘rightness’ and ‘wrongness’. Africans by and large, are communal inclusivists. Managing conflict becomes an ‘open’ sum process involving immediate family, supervisors, elders, etc. within the framework of morals. This necessitates entering into a ‘dialogue’ from which a sense of ‘fairness’ and ‘unfairness’ towards other members in society can emerge.” – Alfred Koopman

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MEDIATION HERITAGE

•The impact of colonialism (cont)

− The mediation idea remained alive however and was promoted by famous South Africans, for example

Mahatma Gandhi said“Whenever you are confronted with an opponent, conquer him with love.” and

Nelson Mandela said“If you want to make peace with your enemy, you have to work with your enemy. Then he becomes your partner.”

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THE MEDIATION RENAISSANCE

•Employment mediation

− The Independent Mediation Service of South Africa “IMSSA”Established in 1984By lawyers, unionists, employers and academicsAs a credible alternative to illegitimate State forumsFlourishedExtended to community disputes

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THE MEDIATION RENAISSANCE

•Employment mediation (cont)

− The Commission for Conciliation Mediation and Arbitration “CCMA”Established in 1995StructureSuccess

• 101769 conciliations between April 2008 and March 2009 of which 45796 were con/arb

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THE MEDIATION RENAISSANCE

•Employment mediation (cont)

− Tokiso Dispute Settlement (Pty) LtdSuccessor to IMSSA4,600 conciliations in the Metal Industry alone between July 2009 and June 2010

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THE MEDIATION RENAISSANCE

•Community mediation

− Community Dispute Resolution Trust “CDR”− The Alexandra Justice Centre− African Centre for Constructive Resolution of Disputes “ACCORD”− IMSSA

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THE MEDIATION RENAISSANCE

•Community mediation (cont)

− Community Conflict Resolution Services “CCRS”− The National Peace Accord

•Environmental mediation

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THE MEDIATION RENAISSANCE

•Family mediation

− South African Association of Family Mediators “SAAM”− Family Life of South Africa “FAMSA”

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THE MEDIATION RENAISSANCE

• International mediation

− Northern Ireland− The Basque Country− Zimbabwe− The Middle East

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THE MEDIATION RENAISSANCE

•Commercial mediation

− The African mediation irony

Colonialism imposed European commercial dispute resolution on Africa, and while Europe has changed to adopt commercial mediation – a traditional African process – South Africa seems to have slept through a commercial mediation revolution

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WHAT IS BEING DONE AND WHAT NEEDS TO BE DONE?

•MEDIATOR TRAINING

− What is being done?ACDS training and accreditationNDRPAC standard setting

− What needs to be done?Community mediation training

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WHAT IS BEING DONE AND WHAT NEEDS TO BE DONE?

•ESTABLISHMENT OF SERVICES

− What is being done?African Centre for Dispute SettlementTokisoEquillore

− What needs to be done?More focus on community mediationMore focus on “small” disputes

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WHAT IS BEING DONE AND WHAT NEEDS TO BE DONE?

•ESTABLISHMENT OF AN ADR DUTY

− What is being done?Corporate Governance – King IIIThe New Companies ActContract

Rules• Bellville Court example

Legislation• 41 statutes

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WHAT IS BEING DONE AND WHAT NEEDS TO BE DONE?

•ESTABLISHMENT OF AN ADR DUTY

− What needs to be done?PledgesContractsRules of CourtGive effect to legislationA Mediation Act

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WHAT IS BEING DONE AND WHAT NEEDS TO BE DONE?

•ADR ADVOCACY TRAINING

− What is being done?Very little

− What needs to be done?Role out of training for

• Lawyers• In house counsel• Parties

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WHAT IS BEING DONE AND WHAT NEEDS TO BE DONE?

•CASE LAW

− What is being done?Brownlee v BrownleeGluckman v Chiert

− What needs to be done?More judicial activism

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CONCLUSION

•Huge benefits

•Rich experience to build on

•Need to keep pace with the rest of the world in all fields

Thank you