John Brand

John Brand is a lawyer, retired consultant and ADR specialist at Bowmans in South Africa, mediator, trainer, and retired director and shareholder of Conflict Dynamics. He serves on the ADR Advisory Committee of the South African Law Reform Commission. John is an IMI Certified Mediator and a member of IMI’s Independent Standards Commission and a CEDR-accredited mediator. He has specialised in dispute resolution and the training of negotiators, mediators, and arbitrators, has written extensively in journals and other publications, and co-authored “Commercial Mediation – a User’s Guide” and “Labour Dispute Resolution” both published by Juta. Over the past 30 years, he has arbitrated and mediated many large commercial and employment disputes and he regularly facilitated negotiation, strategic planning, and transformation processes. He was a member of the team of international experts appointed by the International Labour Organisation (ILO) to design mediation training for developing countries and he regularly trained mediators from countries in Africa, Asia, Eastern Europe, and South America. The ILO also commissioned John to design training material and to train parties and trainers from countries across the world in mutual gain negotiation. This training material has been translated into French, Portuguese, and Arabic and is used extensively throughout the world.

Recently in South Africa, there have been tentative attempts in rules of court and government regulations to encourage parties to use mediation prior to litigating. These attempts are welcome and have become even more necessary because of the COVID 19 pandemic which has made easy, quick, and inexpensive access to justice even more difficult than it was in ‘normal’ times. The purpose of this blog is to suggest some ways in which Judges can best encourage mediation and ensure that parties receive quality mediation when they do agree to use it.

Perhaps the most important factor for Judges to consider in relation to mediation is that it be performed by a reputable mediator. If parties use a mediator who does not have the necessary qualities, training, and special skills necessary for the task, then it is unlikely to be effective and justice will not be done. The way to ensure that a mediator is properly qualified is to make certain that the mediator has not only been trained but has also been accredited by an independent and reputable accreditation body.

In 2010, the leading mediation and arbitration bodies in South Africa collaborated in the establishment of the Dispute Settlement Accreditation Council (DiSAC).[1] It is the professional standards body for the mediation and arbitration industry and it seeks to promote excellence in the practice of mediation and arbitration in the Country.[2] Since its establishment DiSAC has, using international best practice as a benchmark, established among other standards, qualification standards for mediators, mediator training courses, mediator trainers, mediator assessors and mediation service providers.[3]

Not all people who hold themselves out as mediators meet these standards and it is, therefore, important for Judges to promote, and for lawyers and parties to choose DiSAC accredited mediators. DiSAC accreditation of a mediator means that the mediator has not only undergone approved training as a mediator but has been independently assessed and found to be competent; has agreed to practice under supervision (and disciplinary processes) of an Accredited  Service Provider; has agreed to abide by the DiSAC Code of Conduct; and is subject to continued professional development requirements.

Experience, both here and abroad, is that without appropriate mediation training, lawyers tend to conduct a kind of mini-trial or truncated hearing in which they evaluate the parties’ respective cases and then pressure them into a settlement that the lawyer thinks is fair. This evaluative form of mediation is primarily a legalistic and rights-focused one. It has its place under certain limited circumstances, but it is not the only way to mediate nor the best way to achieve optimum outcomes for parties. 

In contrast, specialised mediator training teaches mediators to be more facilitative than evaluative in their mediations. This involves helping parties to problem solve and to explore their underlying needs, fears, concerns and interests. They learn that besides probing legal interests, it helps if the parties also examine commercial and personal interests because most legal and commercial disputes have people, or businesses, or both at their centre. Facilitative mediators then try to assist the parties to find creative outcomes which simultaneously maximise meeting the range of both parties’ interests. The legal strengths and weaknesses of the parties’ cases are examined, but they are not the sole focus of the process. This examination just serves to help the parties understand the risks inherent in litigation and to weigh them against the alternative of an interest-based settlement. Facilitative mediators also assist the parties to navigate the hard bargaining stage which inevitably occurs towards the end of facilitative mediation.

Our experience is that facilitative mediation often delivers outcomes that are more valuable to parties than the best they could achieve, even if they win in litigation.[4] To do this mediators need to have a thorough grasp of modern, interest-based negotiation and mediation theory and practice. They must be able to help parties see beyond legal outcomes and try to help them find outcomes which are of greater value to both than the best outcomes that litigation can deliver.

It is thus important that every mediator, no matter how expert he or she may be in his or her profession, needs specialised mediator training to become an effective mediator. This includes Judges, advocates, and attorneys. Judges, subject to certain reservations[5] can mediate, and, like advocates and attorneys, can make good mediators. However, legal knowledge and skill are not, on their own, enough to make lawyers competent mediators. Many of South Africa’s trained and accredited mediators are lawyers and several leading Judges have undergone training[6] and a number of Judges and acting Judges are members of the Conflict Dynamics Panel of Mediators and therefore DiSAC accredited mediators.[7] Similarly, engineers, accountants, psychologists, and other professionals can, and do become good mediators because of their specialised knowledge and skills, but they too need proper mediator training.

Coaching, assessment and accreditation by accredited coaches, assessors, trainers, and training providers ensures that the training that mediators do receive is up to standard and that they are competent to mediate. South Africa now has a plurality of such accredited specialists and organisations.[8]

To find a DiSAC accredited mediator it is necessary to access an accredited service provider’s panel of accredited mediators because, to be accredited, a mediator must be a member of an accredited service providers panel. This is to ensure that the mediator is subject to an ethical code, supervision, discipline, and ongoing professional training by a DiSAC accredited service provider.[9] Accordingly, Judges can encourage parties to use these DiSAC accredited mediators and, if this is done, it will ensure that Court aligned mediators are qualified to world standards and that parties will be provided with world-class mediation.

In doing this, it is preferable that Judges do not prefer one accredited service provider or mediator above another but instead leave the choice to the parties. In this way, there can be competition between mediators and service providers to publicise their offering and to make it attractive to parties. This would encourage voluntariness, a  plurality of mediators and service providers, racial and gender diversity, and excellence.

If the parties cannot agree on a service provider or a mediator, then the Judge could recommend that the parties agree to an accredited mediator proposed by the Judge President of the Court with jurisdiction over their dispute.

It would also help encourage mediation if, in cases when one or more parties, without good cause, fail to agree to mediation through a DiSAC accredited service provider or mediator, Judges sanctioned them with adverse cost awards. In doing this the Judges could follow the precedent set in a South African case like MBvNB[10] and be guided by the jurisprudence that has developed in jurisdictions like the United Kingdom.[11]

If affordability is an issue, then accredited service providers could be required to have in place a scheme which, in appropriate circumstances, enables parties to find a pro-bono mediator, or assists them to reach an agreement on a disproportionate payment arrangement of the mediator without disclosure of such arrangement to the mediator.

It would also help if the Judges and Court registrars publicly promoted mediation and informed parties about what mediation is; what its advantages are; what DiSAC is; and how they can contact DiSAC accredited service providers to obtain the services of accredited mediators.

Hopefully, by promoting mediation in this way, the enormous litigation load of our Judges could be reduced, and mediation could become a major source of access to speedy, inexpensive and quality justice in South Africa.