By Barbara Whittle

In his budget speech last month, Minister of Justice and Correctional Services, Michael Masutha, announced that the date for the implementation of the court-annexed mediation rules had been shifted to 1 December 2014 to synchronise the implementation with the impending re-organisation of magisterial districts. Earlier this year, the Law Society of South Africa (LSSA) submitted proposals to the Justice Minister’s Advisory Committee regarding the qualification, standards and levels of mediators who will conduct mediation under the court-annexed mediation rules. The LSSA has supported the concept of mediation to the extent that it may lead to greater and efficient access to justice.

At the time of this issue of De Rebus going to press, the standards were still to be published by the Department of Justice and Correctional Services.

In its submissions, the LSSA stressed that it was important for the Justice Department to ensure that there are sufficient numbers of trained mediators available in most parts of the country so that the project is sustainable. To this end, and in order to assist the department with the smooth implementation of the pilot project, the LSSA provided an initial list of potential attorney mediators.

Training of mediators

The LSSA outlined the requirements for the training of mediators as follows:

• Aspirant mediators must complete an accredited training course in court mediation. The LSSA suggested that a 40-hour course would be appropriate. Alternatively, mediators should submit proof of other suitable training and/or experience, that can be regarded as adequate prior learning.
• Training should be affordable and accessible.
• The course content should include a basic grounding in conflict management, dispute resolution, understanding the negotiation process, the use and benefits of appropriate dispute resolution, mediation process, mediator skills and an understanding of the legal framework (the court-annexed mediation rules and judicial activism).
• As mediation is a practical skill, the course should include the development of effective skills of the participant as a mediator through role-playing demonstrations, coaching and assessments. The coaching and assessments should be conducted by experienced mediators and allow for the personal development of the skills in the individual participant. Training participants must be assessed as competent by experienced assessors. The assessment would have to include a practical element, such as the candidate being able to draft the documents required in terms of the rules.

Code of conduct and complaints process

The LSSA noted that it was imperative that mediators should be subject to a code of ethics applied by a recognised organisation. The LSSA stressed, however, that attorneys are subject to the supervision and disciplinary jurisdiction of the statutory law societies and as such complaints would be dealt with by the law societies.

The LSSA pointed out that is was essential that the Justice Department should provide a guide and code of conduct to mediators who are not subject to the supervision of recognised organisations.

Qualifications

The LSSA suggested levels of entry for mediators, but for complex matters, legal knowledge should be a requirement. The LSSA suggested:

• Semi-skilled – grade 12 or equivalent plus completion of an accredited training course.
• Skilled – four years’ relevant tertiary qualification plus completion of an accredited training course.
• Highly-skilled – four years’ relevant tertiary qualification, plus completion of an accredited training course, plus five years’ mediation experience.

Dispute resolution officer

The LSSA stressed the critical role of the dispute resolution officer and pointed out that he or she needed to have a sound grasp of matters in order to refer them to the most appropriate level of mediator. The LSSA suggested that the possibility could be explored that attorneys, as part of their compulsory 24 hours per year pro bono services, could assist the resolution officer with reviewing and referring matters.

Equal distribution (no bias)

The LSSA submitted that equal distribution of mediation work must be a principle of the process and must be applied strictly by the department. Appointments must not depend on the membership or affiliation of a mediator to any institution associated with mediation work.

Compiled by Barbara Whittle, communication manager, Law Society of South Africa, barbara@lssa.org.za

This article was first published in De Rebus in 2014 (Aug) DR 14.