Court-annexed mediation: Should it be embraced by the legal profession?

April 1st, 2015
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By Benjamin Charles van der Berg

1 December 2014 marked the advent of court-annexed mediation in magistrates’ courts. The magistrates’ courts involved in this pilot project are seated at Johannesburg, Soweto, Randburg, Krugersdorp, Kagiso, Pretoria North, Soshanguve, Palmridge, Sebokeng, Mmabatho, Temba and Potchefstroom (GN 855 GG 38164, No 855, 31-10-2014). The rules of court governing such mediation and the qualifications, standards and prescribed tariffs for mediators have been promulgated. With the aforementioned the government had set the stage (although it being a humble one) for court-annexed mediation to commence. The only further required element is the political will of all concerned to participate in the process. The primary focus of this article will therefore not be on the process of such mediation, which might see changes as the process matures, but motivational aspects will be highlighted and therefore the focus will be on the question: Why mediate?

At first glance, the legal practitioner might view court-annexed mediation with scepticism, if not finding the idea questionable that the intended mediation may prove to be beneficial, if not invaluable, to all concerned. Indeed many may feel mediation is a waste of time and rarely utilised successfully. Indeed the process of mediation can become a legal ornament if people do not buy into the process.

As we explore the nature of mediation the potential benefits will become self-evident and will prove invaluable to the judicial process, to society in general and to legal practitioners and their clients.

What is mediation?

Rule 73 of the Magistrates’ Court Rules adequately defines ‘mediation’ as ‘the process by which a mediator assists the parties in actual or potential litigation to resolve the dispute between them by facilitating discussions between the parties, assisting them in identifying issues, clarifying priorities, exploring areas of compromise and generating options in an attempt to resolve the dispute’. It is further emphasised in r 72 of the Magistrates’ Court Rules that mediation is a voluntary process. In mediation a dispute is resolved by the disputants reaching a settlement agreement.

Why mediate?

There has been a tremendous increase in mediations over the last decade or so. This can be attributed to the successes mediation has delivered as well as the benefits it provides. Not only does mediation present legal practitioners and disputants with a carrot, but in the event of our courts following some international precedents it also presents a stick as failure or refusal to mediate might lead to adverse or punitive cost orders being granted.

Mediation is generally highly effective as a dispute resolution process

Mediators are unanimous that mediation has a success rate of 80% to 90%. For example, British Columbia reported that 80% of about 30 000 motor vehicle accident cases were successfully resolved as a result of mediation (www.ag.gov.bc.ca, accessed 27/2/2015). In the year 2000 Singapore’s statistics boasted with a success rate of 95% out of 3 943 cases.

Mediation comes natural to people and promotes harmonious relationships

Mediation is in essence not complex and indeed comes quite naturally. To many it is a familiar sight to recall a mother or a teacher resolving a dispute by standing between two rival siblings or learners holding their wrists in each hand while resolving a dispute. Indeed the word ‘mediation’ is etymologically derived from the Medieval Latin mediatonem (nominative mediatio), meaning ‘the division in the middle’. Although mediation models taught to mediators greatly refined the process, mediation at its core is about a caring person being in the midst of two disputants, aiming to resolve the dispute between them in such a manner that they can live in harmony with one another. As opposed to this, litigation can be described as an adversarial process with a winner and a looser. Indeed many of us will frown on an adult teaching children to settle disputes by way of competitions. In terms of r 71 (b) and (c) of the Magistrates’ Court Rules some main purposes of mediation are to ‘promote restorative justice’ and ‘preserve relationships between litigants or potential litigants which may become strained or destroyed by the adversarial nature of litigation’. This aspect may prove invaluable where the disputants were in a close relationship or from a customer care perspective or even where a general business relationship is sought to be preserved. South African society is in need of restorative justice and harmonious relationships to counter conflicts resulting in the polarisation of people, which in turn may result in protests, violence and/or litigation.

Mediation empowers people to resolve their own disputes

Often litigants perceive litigation as a power struggle. People often threaten with legal action or their attorneys.

After threats have been made they then seek the advices of their attorneys and so litigation ensues with the heading of court documents pronouncing the combatants. Though, in the mind of the litigants, they might think that they are ‘enforcing’ their rights, what in actual fact happens is that they are disempowering themselves and handing over the control of resolving their dispute to their legal representatives and the court, which is governed by the laws and rules of court. With mediation, the disputants remain in control of the process of resolving their dispute and may even agree on the mediator they are comfortable with. Disputants are encouraged to work together in finding a solution to their problem. Neither party is disempowered nor is the element of enforcement present at the mediation proceedings. This aspect of self-determination is of great value for certain individuals and entrepreneurs.

Mediation provides a confidential platform for disputants to properly vent issues and is conducive to effective communication

As a result of the informal process and atmosphere of mediation, disputants can better communicate their interests and concerns and many of the stresses of the adversarial court processes are avoided. In this regard legal practitioners as mediators must caution themselves not to be too formal while mediating.

Disputants are encouraged by mediation to negotiate openly with one another in order to reach a settlement. In this regard clause 12 of the Agreement to Mediate (Form MED-6 of Annex 3 to the Magistrates’ Court Rules) stipulates that the mediation will be strictly confidential and without prejudice. This aspect can be of great value if one of the disputants wants to save face and not proceed with litigation, which takes place in open court, especially if the dispute might attract attention in the media because of a scandalous aspect.

Disputants can freely present their side of the dispute. They are not restricted by the question-answer format followed in court. They are not restrained by the law of evidence and may address aspects, which would not have been addressed if the matter went to court. Disputants are also not limited to legal remedies. Many disputes are indeed not of a legal nature and are caused by personal aspects such as personal feelings, strained relations and finances, which ordinarily will not see the light of day in court. So, for instance, capacity to pay may be safely addressed during mediation. Often litigants realise with shock that ‘having your day in court’ does not mean ‘having your say’ in court. Usually the parties as co-authors of a settlement view the outcome of mediation as fair and they leave with the feeling that they have been heard.

Mediation is less costly to the client and less time consuming

Though the subheading will need little motivation for attorneys, the following quote is offered:

‘Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often the real loser; in fees, expenses and waste of time. As a peacemaker the lawyer has a superior opportunity of becoming a good man’ – Abraham Lincoln (http://jskemper.org, accessed 10-3-2015).

Mediation offers legal practitioners with a career alternative

The prescribed low fees and qualification standards perhaps necessitates some criticism. Legal practitioners are qualified individuals who primarily render their services for compensation. Mediation does not require less skill and expertise than litigation, though it requires different skills and expertise. The prescribed hourly rate for mediation for a level 1 mediator amounts to R 500 and for a level 2 mediator it amounts to R 600. These rates do not make mediation more attractive for the legal practitioner. There is no reason why legal practitioners should not be able to charge fees comparative to litigation fees. Mediation will still be less costly than litigation because of the simplicity of the mediation process and duration compared to litigation. Mediation is also an excellent opportunity for legal practitioners to meet their annual pro bono obligations and thereby promoting access to justice.

Mediation (notwithstanding the above criticism) is good for business

Quite often clients have a litigious mindset and with that also unrealistic expectations as to what litigation entails. Therefore clients might be surprised when you advise them to mediate and they may even be against the idea. Few businesses are faced with the challenges attorneys face with the alignment of delivering legal services with the expectations of clients. In essence clients usually need the effective and efficient resolutions of their disputes and this is what mediation usually achieves. When the needs and expectations of clients are met, the result is customer satisfaction, which in turn will result in more referrals and instructions.

Mediation and case load

Presiding officers need to manage their case load and as is evident from the court rolls, your matter is one among many. Mediation is conducive to lessening the case load at courts and so promoting the ends of justice.

Ethical duty on advising clients on mediation

In most instances it is in the client’s best interests to mediate and clients should at least be advised on the option of mediation and the potential benefits. In Halsey v Milton Keynes NHS Trust [2004] EWCA Civ 576 this obligation was entrenched in English jurisprudence as follows:

‘All members of the legal profession who conduct litigation should now routinely consider with their clients whether their disputes are suitable for ADR’ (at para 11).

Punitive and adverse costs orders for not advising on mediation

Rule 33 of the Magistrates’ Court Rules gives magistrates a wide discretion in awarding costs and stipulates that a court ‘may award such costs as it deems fit’. Unreasonable failure to mediate may result in an adverse cost order (compare the Halsey case cited above for guiding factors). Failure to advise a client might be grounds for a de bonis propriis cost order in appropriate circumstances.

Conclusion

Mediation, though not a panacea for every dispute, should be embraced and promoted by legal practitioners for the better of all South Africans. Notwithstanding the risks of adverse and punitive cost orders, we are reminded of the words of John F. Kennedy during his inaugural address, 20 January 1961: ‘Let us never negotiate out of fear. But let us never fear to negotiate.’

See 11.

Benjamin Charles van der Berg LLB (UJ) is an attorney at Borman Duma Zitha Attorneys and court-annexed mediator in Randburg.

This article was first published in De Rebus in 2015 (April) DR 24.

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