Making Mediation Work in South Africa: Here’s What Must Happen Next

Introduction

The argument that mediation can expedite justice in South Africa and enhance access to it has already been made. The question now is: what must happen next?

I teach dispute resolution (this area includes negotiation and mediation) and have been a mediation scholar since 2012, my final year as an undergraduate law student. My knowledge of mediation principles, practice, and process continues to evolve. Yet my fundamental belief remains constant: mediation is the solution to the many problems and crises that the judicial system in South Africa is grappling with.

Mediation can assist with access to justice and expedite its delivery. In addition to providing access to justice, mediation offers many other benefits. The benefits have been discussed and proven at length in other articles and studies.

Yet the adoption of mediation is sluggish, and the use of court-connected mediation (Chapter 2 Magistrates’ Mediation Rules, Rule 41A, Gauteng Directive and Protocol) remains limited.

What needs to happen next

As an academic and mediator in South Africa, these are the core issues:

First, it is important to note that the legislative support already exists, and more developments are underway to make mediation compulsory. For this reason, the mediation agenda will only take off if the government fully supports the process through funding, infrastructure, and human resources.

The court infrastructure already exists (court buildings), but a multi-use approach should be adopted for their operation. Consequently, mediation ‘should be made available within the existing formal…structures.’ (Mowatt, 1993). What is needed are dedicated mediation rooms in the court building, court-appointed mediators, and mediation clerks to assist with mediation administration.

In essence, it is about institutionalising mediation. As a mediator, I have worked with a successful NGO that provides mediation services to a magistrates’ court in the Western Cape. The driving force behind the mediation was a specific magistrate. She understood mediation and how it could assist court users in resolving their disputes, which tremendously helped her court roll. The mediation services rendered by the NGO not only had a great impact on court rolls, but ensured that people had access to justice, it saved them costs, it was speedy, and ultimately, their conflict was resolved through mediated settlements. This had an even greater impact on society, as peace was restored in families and in a community. The mediation programme in that particular court has become almost non-existent since the driving force (the magistrate) resigned. It was disheartening, as she was the lifeline or saving grace for

many. To date, people go to that court for free mediation services but are turned away because there is no support from judicial officers to maintain and sustain the mediation programme. Hence, mediation should be institutionalised and made mandatory as part of the court process. The lesson learned from the mediation programme is that the judiciary must drive mediation for it to flourish.

Second, the next generation of legal scholars should be taught to think differently and resolve conflicts differently. For this reason, legal education should shift to a strong focus on developing negotiation and mediation skills. LLB students are taught to be combative, argumentative, and to win at all costs. This is fallible. If the aim is access to justice, quality and long-term solutions, then surely, we should start teaching our LLB students differently. Thus, as opposed to teaching them to be a bulldog lawyer, teach them to be an amicable peacemaker.

It is therefore incumbent on the current LLB framework to incorporate greater negotiation and mediation theory and practice so that the next generation of legal scholars can think differently about conflict and conflict resolution. Once they start thinking differently, they will practice differently. It all starts with legal education, where negotiation and mediation are core subjects. Currently, these subjects are taught as electives or not taught at all. Leaving an LLB graduate with no knowledge of negotiation and mediation processes and skills

Third, existing legal professionals must embrace change, moving from combative to collaborative. It is truly my conviction that mediation is not well understood by the legal fraternity. If mediation were understood and its true potential realised, they would realise that mediation serves as a means to access justice in a timely, affordable and less antagonistic way for their clients.

The legal profession has been slow to accept mediation. Legal professionals are the gatekeepers, and their duty is to inform their clients about mediation and encourage them to engage in a meaningful conversation with their adversary. Mediation works, but the gatekeepers are not making it work in reality.

Fourth, professionalise the mediation industry. Prof JG Mowatt (one of the earlier scholars in ADR) wrote an article in 1993 entitled ‘Some thoughts on a mediation profession’. He was prophetic in his reflections. Essentially, he was saying that ‘What may be preferable is to propose the establishment of a new and separate profession of the mediator; persons offering a dispute resolution service which is sui generis and which has its own form of training and qualification’ (Mowatt, 1993 at 791).

It is, however, submitted that in today’s times, a new profession would not be created as mediators have always existed under the guise of ADR practitioners, similar to arbitrators.

For a mediation profession to be effective, there cannot simply be a ‘dash of mediation training’ (Mowatt, 1993). It is recommended that a professional qualification be developed to specifically train mediators. Thus, a postgraduate diploma in mediation (NQF Level 8) and/or a Master’s in mediation (NQF Level 9) should be developed. Higher education institutions should be the custodians of these courses so that pedagogy and assessment are consistent,

sound, and strictly regulated. This will ensure that professional mediators are adequately trained in both the theory and practice of mediation. This will give the profession the credibility and honour it deserves. It should be open to all persons with an appropriate undergraduate qualification, as mediation can occur across all spheres and areas: legal professionals, social workers, teachers, clergy, community leaders and engineers could all complete this professional qualification.

Moreover, under the current dispensation, these professionals will be seen as qualified mediators rather than mere accredited or certified mediators. Several mediation organisations offer inadequate 40-hour training that is merely overseen by the industry’s regulatory body. No checks and balances are in place to ensure that the material being taught is academically relevant and accurate. Several of these 40-hour training courses are poorly structured, and the training materials do not provide the theoretical foundation required to truly understand the nature of mediation. There is also a lack of proper assessment, supervision, and reporting.

As part of professionalising the mediation industry, a Mediation Society should be established to represent the mediation profession (similar to the Law Society of South Africa). The Mediation Society should provide practice guidelines and regulate the profession’s standards, ethics, and integrity. I do note that certain mediation organisations/associations currently use the name ‘society’ in their name (Mediation Society of South Africa, KwaZulu-Natal Society of Mediators, Western Cape Society of Mediators). However, a Mediation Society should not be established at the provincial level; a national footprint is needed to streamline and unify regulation.

Finally, creating greater awareness in civil society. Many are still unaware of mediation, its benefits, and how it can help them resolve their disputes, whether they involve labour, commercial, family, or harassment. Thus, it is once again incumbent on places of influence (SAPS, Law Enforcement, courts, social services, private businesses) to play an active role in promoting mediation.

The way forward

South Africa prides itself on practising Ubuntu. If Ubuntu were a person, it would be saying, ‘Mediation is the way to go.’ A clarion call is being made: you need to embrace mediation; it may just be the answer your client, family member, business partner, colleague, friend, or neighbour is searching for.

As a mediation scholar, I know that the solution many are seeking to the crises our courts and communities face is mediation. I understand the nature of mediation, its benefits and its transformative effects beyond the mediation room. Therefore, I believe that the future is mediation, and that it has only just begun in South Africa.

Bibliography

JG Mowatt ‘Some thoughts on a mediation profession’ 110 (1993) South African Law Journal 787-795.

Debbie Collier ‘Mediation can speed up justice in South Africa: Legal scholar makes the case’ available at https://theconversation.com/mediation-can-speed-up-justice-in-south-africa-legal-scholar-makes-the-case-270110.

Monique Carels

Monique Carels is a lecturer in the Department of Commercial Law, Faculty of Law at the University of Cape Town (UCT). She teaches various subjects to final-year law students (undergraduate) and Master’s students (postgraduate). Her area of specialization and expertise is Dispute Resolution, specifically Negotiation and Mediation. Monique completed her… MORE