After 50 years of experience as a judge’s registrar, articled clerk, attorney, negotiator, arbitrator, mediator, and facilitator, I am often asked what were the key lessons that I learnt along the way.

I qualified as a lawyer in 1976 and, as a lawyer, I was involved in much bitter conflict. Firstly, defending students following the Soweto uprising in 1976. Then acting for the union movement in strikes, unfair dismissals, and other disputes during the turbulent 80’s. To make ends meet, I also did some divorce and road accident work.

In 1984 I qualified as an Independent Mediation Service of South Africa (IMSSA) arbitrator and in 1989 as an IMSSA mediator. Mediation really opened my eyes and transformed me from a gladiator into a peacemaker. This was initially in employment disputes and later in civil, commercial, and international political disputes. I also turned my hand to the training of arbitrators, mediators, and negotiators.

From this experience, I want to share just 5 key lessons out of many.

The first is the superiority of negotiated and mediated outcomes over litigated ones

Over my last five years in practice, I facilitated a negotiated settlement between the parties to the South African silicosis class action. There were between 17 000 and 500 000 potential claimants and 32 respondent companies in respect of 82 separate mines and the claims stretched over a period of about 50 years. The settlement received considerable media coverage and was consistently referred to as a ‘compromise’.

If the case had been litigated to the end it would have taken ten to fifteen years and successful claimants would have received various amounts of damages, provided they were still alive and provided the company or companies against whom they were successful were still in existence. The claimants would have needed the assistance of a lawyer, whose fees would probably have significantly eroded the amount awarded to them. A claimant would have to have been medically examined in advance of commencing the action, to prove the existence of a viable cause of action, as well as the degree of his silicosis or tuberculosis. This would have required a suitable medical facility, within reach of his often distant rural home somewhere in Southern Africa, and his employment and other records would have to have been obtained to prove which of the companies he worked for were liable and to what degree. The claimant would further have had to be assisted by experts to quantify his damages.

To recover his statutory compensation under the Occupational Diseases in Mines and Works Act (ODMWA), he would have to have had a separate medical examination according to different criteria to get paid out in terms of this Act. Even if the companies had successfully defended the litigation, it would have been at enormous legal, management and potential reputational costs.

In contrast, the negotiated settlement established a Trust which, among many things has to actively seek to locate potential claimants, arrange for them to be medically examined near their place of residence, and help process their payments. An amount of R845 million has to be paid to the Trust to facilitate this.

There are nine levels of agreed benefit payments, dependent on a claimant’s degree of illness and the companies have guaranteed to pay benefits up to R5 billion. It is unnecessary for a claimant to prove apportionment as between the settling companies and each company is liable for its respective share with separate guarantees totalling R5 billion. Because the companies have provided guarantees for the settlement amounts, claimants do not run the risk of non-payment due to a company going into liquidation. The companies have agreed to the basis on which benefit payments should be apportioned between them and it is therefore unnecessary for a claimant to prove this. Claimants do not need to pay lawyers or other agents to process their claims

There are categories of claimants who will also receive payments even though they were not included in the class action claim and the settlement was carefully crafted to ensure that the criteria for settlement and statutory compensation for the degree of silicosis were aligned. This enables the tracking, tracing, and medical examinations for both to be synchronised. The practical effect of this is that claimants will not only receive compensation under the settlement but may also receive statutory compensation.

In contrast with this, if the case had been litigated to the end, a Court could not have ordered the establishment of the Trust, nor for it to be funded in the way it has been, nor for it to do what has been agreed to. No Court could have required the synchronisation between the settlement and the ODMWA systems which will result in very significant additional statutory benefits being paid to eligible claimants. Therefore, the settlement far exceeds the value of any outcome, for both the claimants and the companies, that could have been achieved in litigation.

Modern research shows that, contrary to common belief, negotiated settlements, particularly ones mediated or facilitated by skilful experts, achieve outcomes that are not in fact compromises but are of far more value to parties than litigated outcomes

One recent study of 129 settled civil cases shows that in 65% of them, a substantial element in the mediated settlement was not a part of the original demands filed in the Court. [1] One of the ways to achieve these superior outcomes is, through negotiation, to get to the parties’ real interests, needs, fears and concerns that lie beneath their demands, positions, and legal rights.

Therefore, my second key lesson is the importance of discovering underlying interests, needs, fears and concerns and addressing them.

Our experience of the Arb/Med process illustrates this very well. In Arb/Med, a single qualified mediator and arbitrator, by agreement between the parties, first arbitrates the dispute but does not disclose the award to the parties. The arbitrator then becomes the mediator and mediates the dispute, in joint and confidential side meetings, between the parties. If an agreement is reached, the arbitration award is never disclosed and if not, it is disclosed and becomes binding on the parties.

In one such case, between a worker and an employer, Felicity Steadman decided that dismissal had been unfair, and the undisclosed award was the reinstatement of the employee. She then went into mediation mode, and the employer, in a side-meeting, said that it would never take the employee back under any circumstances.

In a side-meeting with the employee, it transpired that the employee did not actually want reinstatement but wanted compensation instead. He had set up a vegetable hawking business which he preferred to employment by the employer, and he needed to buy a small truck to get vegetables from the market.

The employer said that it could not afford the amount of compensation that the employee wanted because it was in financial difficulty. It turned out that the employer had a fleet of used trucks that it was about to auction, and it was eventually agreed that, in settlement, the employee could have one of those trucks in lieu of compensation. Both parties were very happy with this settlement, but neither would have been happy with the undisclosed reinstatement award.

This outcome could only have been achieved through a process of negotiation involving side and confidential private meetings between the mediator and each party, and discussions focused on interests as opposed to rights. These meetings are of course not possible in arbitration or litigation, which are both based on the evidence presented in an adversarial format and a decision based on rights and fairness.

In ‘Getting to Yes’ by Fisher and Ury [2] the authors use an iceberg analogy. The idea with the iceberg or our South African version, the hippo, is that if negotiators can get to that part of the iceberg that is not visible or the ‘body of the beast’ beneath the water, there is a much greater chance of achieving a mutually satisfying win-win outcome to the conflict than focusing only on rights. Positional bargaining, as well as litigation and arbitration, only focus on what is visible, the claim or the demand, i.e., the tip of the iceberg or the ears and rump of the hippo.

To be able to do this one must stack power, rights, and consensus processes in the correct order. In ‘Getting Disputes Resolved’ by Ury, Brett and Goldberg,[3] disputing parties are encouraged to begin with consensus-based processes and, failing agreement, to only then move on to rights-based approaches such as arbitration or litigation, or to power-based approaches such as strikes and lockouts.

My third key lesson is linked to these first two lessons and is to locate a dispute properly within the conflict dynamic.

Imagine, for a moment, the lava and the explosions of a volcano. These might be compared to the manifestations of conflict. But deep underground are the real causes of the explosion. It is the same in human relations. It is therefore very important to separate causes of conflict from its manifestations or symptoms and to try to address, not only the manifestations but also the underlying causes and the factors which aggravate it on its path. The causes of conflict are often the result of unmet interests, needs fears and concerns and, once those are met, the conflict is more easily permanently resolved.

My fourth key lesson is encapsulated by the term ‘go slow to go fast’.

My fourth key lesson is encapsulated by the term ‘go slow to go fast’ from William Ury’s book ‘Getting Past No: Negotiating with Difficult People’.[4] To get to causes and interests, one needs to patiently separate problem analysis (discovering causes and interests), from solution search (creativity), from solution evaluation (risk analysis) and from solution choice (settlement). Unfortunately, parties often are impatient and want to start with solution choice which inevitably results in sub-optimal outcomes.

To achieve optimal and lasting outcomes one needs patience and special skills:

• to get to causes and interests, one must have excellent listening and hearing skills;
• to search for solutions, one needs exceptional brainstorming and creative thinking skills;
• to properly evaluate solutions, one needs to be able to carefully assess the parties' best, worst, and probable alternatives to an agreed solution commonly referred to as BATNA, WATNA and PATNA. For this decision trees can be very helpful;
• to help parties agree on an outcome, one needs to understand concepts like reactive devaluation, the anchoring bias, and working along a bargaining range to get parties into the zone of possible agreement (ZOPA).

My fifth lesson is the importance of understanding psychology, including unconscious bias and emotion.

Although it is useful to have legal, accounting, business and other professional knowledge and skills it is essential to develop a good understanding of the psychological forces at play in a dispute There is much that has been written recently on understanding emotion, understanding bias, and primitive responses to threat. The more aware negotiators and mediators are of these concepts and of responses to emotion and unconscious bias, the better equipped they are to assist parties in conflict.

In conclusion, it is worth emphasising that one is not automatically a qualified dispute resolver simply because one is a judge or magistrate, a lawyer, a psychologist, an engineer, an accountant, or any other expert or professional. To acquire the specialist and multifaceted knowledge and skills necessary to be an effective conflict resolver, one needs to undergo excellent negotiation and mediator skills training. In addition, it is essential to then participate in continuing professional development, including reading, and attending frequent professional development sessions.

Hopefully, these lessons may also prove useful to you.