Mediation presents new opportunities for attorneys

May 1st, 2012
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Law Society of South Africa AGM 2012

The Law Society of South Africa’s annual general meeting took place from 26 to 27 March at Emperors Palace in Johannesburg. On the agenda were the Legal Practice Bill, court-based mediation, business rescue, corruption and the attorneys’ profession and social media.

By Mapula Sedutla

Court-based mediation and the Civil Justice Reform Project (CJRP) were topics on the agenda of the AGM. Raj Daya, deputy chief state law adviser and secretary to the Rules Board for Courts of Law, discussed the court-based mediation pilot project and the CJRP, while Ebrahim Patelia, a Johannesburg attorney and member of the LSSA Alternative Dispute Resolution Committee, spoke about the role of attorneys in court-based mediation, which he said presented new opportunities for attorneys practice.

The CJRP

Mr Daya said that the objective of the CJRP was to align the civil justice system with the constitutional values of the country, while simplifying and harmonising laws and rules. This, he added, implied that justice would be ‘easily and equally accessible’, particularly to the vulnerable and poor members of society. The review will be conducted in a ‘comprehensive, integrated, holistic and practical manner’ and will highlight gaps in current policies, laws, rules and procedures, he said.

The effectiveness of courts’ jurisdiction and the capacity to deal with civil disputes will be examined, as will the affordability and cost effectiveness of the justice system. The review will also look at the integration of alternative dispute resolution (ADR) mechanisms and a mandatory referral system, which is intended to simplify court procedures and processes. The modernisation of the justice system will result in effective case management and will clear backlogs, Mr Daya said.

Mr Daya said the review process will consider –

  • the cost of litigation;
  • accessibility of courts by those from rural areas;
  • how Road Accident Fund matters impact on court rolls;
  • how the fragmented court system prolongs family law matters such as divorce and matrimonial disputes;
  • how small claims courts can be optimally used;
  • the policy and legislation on liquidation; and
  • if there is fair distribution of legal services, especially to those who cannot afford these services.

Mr Daya said that the Minister of Justice and Constitutional Development and the Chief Justice will jointly coordinate and lead the CJRP. The organised legal profession and other stakeholders, including civil society, will be invited to participate in the process, Mr Daya said.

Mediation Pilot Project

Mr Daya also provided an update on the Mediation Pilot Project, which will see the introduction of mandatory court-based mediation. He said that currently the draft mediation rules still needed to be finalised, but this would only be done when the new Rules Board is appointed. He said that the draft rules would be amended to confine the pilot project to the High Courts. Once finalised, the rules will be gazetted and, after a month, a public announcement will be made, followed by a public awareness campaign. Once this has taken place the pilot project will be rolled out in June at the earliest. Initially, the pilot project will be implemented at all High Courts and will later be extended to regional and magistrates’ courts. Outcomes of the project will be evaluated to improve legislation and rules, Mr Daya said.

The Rules Board is currently compiling regulations that will address matters to be excluded from mediation, such as ex parte matters and matters of urgency. Mr Daya said that, ideally, the drafting of the regulations should have been a parallel process with the drafting of the rules, but the Rules Board’s first priority was to publish the rules in order for practitioners to understand the board’s intention in implementing court-based mediation.

How the pilot project will work

Mr Daya said that the Justice Department would not use its current staff to act as dispute resolution officers, but that these officers would be drawn from the ranks of those people who are able to explain mediation to clients. Officers would need to have proper training, he added. The Justice Department and the Minister of Justice will have no role in appointing mediators; but will create the standards, mechanisms and platform whereby anyone can apply for accreditation subject to the required standards.

In respect of accreditation of mediators, Mr Daya said that this would be undertaken by agencies that currently exist, such as the National Accreditation Board for Family Mediators, which has rules, fees and structures in place. The board was in the process of consulting with these agencies to ensure that the standards for mediators are adequate. Accredited mediators will be placed on a list, which will be made available to disputing parties in order for them to choose a mediator.

Legal practitioners will be able to act as mediators and provide advice to clients at the initial stages of a dispute, which will ensure a faster case turnover. Mr Daya said that mediation was intended to reduce acrimony between litigating spouses during divorce proceedings as the use of expert mediators like psychologists and family law practitioners is aimed at restoring civil relationships.

Mr Daya said that the Rules Board recognised that the fee tariffs could not be too high or too low and that a middle ground must be found that may be slightly higher than the tariff of Legal Aid South Africa (Legal Aid SA). This will be finalised by the incoming Rules Board, he said.

Mr Daya said that discussions had taken place with Legal Aid SA to assist disputing parties who could not afford the cost of mediation. He said that the fiscus would need to allocate funds to Legal Aid SA for this. Disputing parties who can afford these costs will pay mediators themselves. Mr Daya said: ‘This will be no different from them paying for a regular court process that may take a year or two years.’

Mr Daya concluded by saying: ‘If the mediation project can achieve a 10% decrease in the numbers of matters that are on the court roll, it would have reached its objective.’

The role of attorneys in mediation

Mr Patelia said that South Africa already had 41 statutes that promoted mediation and it made practical sense for the attorneys’ profession to ‘rethink ADR and the opportunities it presents’. Mr Patelia added that ADR enabled those who would not otherwise have access to justice to access it and that ‘challenging economic realities’ meant that practitioners should consider ADR. Countries such as Uganda, Lesotho, Botswana, the United Kingdom, the United States, India, Brazil and Australia were already using court-based mediation, he said.

Mr Patelia said that court-based mediation could provide new opportunities for practitioners. ‘It will take a new vision for practitioners to see the potential mediation presents. Attorneys are best placed in making appropriate choices to resolve disputes, as we are, in essence, dispute resolution practitioners. We have access to, and influence over, the users of the dispute resolution system. We need to make ourselves more relevant and dispel the myth that we are destructive, but are rather constructive. This will help us recognise a new generation of clients,’ he said.

Some of the benefits of mediation that Mr Patelia highlighted were –

  • promotion of access to justice;
  • enhancement of practitioners’ negotiation strategies;
  • enhancement of practitioners’ reputation with clients;
  • enhancement of sustainability of the attorneys’ profession;
  • promotion of effective resolution of any conflict;
  • it allows for proper dispute analysis;
  • it adds to the basket of options that includes litigation; and
  • it assists in finding realistic and workable solutions.

Mr Patelia said that the LSSA Alternative Dispute Resolution Committee supported the initiative of court-annexed mediation. ‘[The committee] sees it as an opportunity to enhance skills of attorneys, create wider business opportunities and promote access to justice. Through the LSSA’s submissions on the draft rules and the role of [Legal Education and Development’s (LEAD’s)] input on the mediation standards, we have been actively involved in presenting the needs and suggestions of attorneys to the Rules Board. We see the role of the attorney as primary in achieving the outcomes of court-annexed mediation. We will assist, monitor and contribute towards the positive realisation of the objectives of the pilot project,’ Mr Patelia said.

The future of mediation

Ultimately, the future and success of court-based mediation lies in the development of skills among attorneys, Mr Patelia said. LEAD will continue to develop the skills of attorneys through initiatives such as –

  • practical legal training, which enhances the ADR module;
  • divorce mediator training;
  • the New Lawyer course;
  • a new course on Preparing and Presenting in Civil Mediation; and
  • a programme on civil mediator training will also be considered in the future.

‘The change is here. It is up to us as attorneys to see how we can best exploit it to the benefit of our clients,’ said Mr Patelia.

Mapula Sedutla, mapula@derebus.org.za

This article was first published in De Rebus in 2012 (May) DR 17.