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.
Rule 41A, as most people know, is an amendment to the rules regulating the conduct of proceedings in the High Courts of South Africa and comes into operation on 9th March 2020. The Rule requires parties to disputes in the High Courts to consider mediation before proceeding with litigation. One of the first questions people ask about Rule 41A is - ‘who will mediate disputes under the Rule and what qualifications, if any, must the mediators have?’.
On the face of it, the answer to the mediator qualifications question seems quite simple. The only express qualifications required of the mediators in the Rule is that they be “impartial” and “independent”. There are no other express qualifications required.
In previous drafts of the Rule mediators were expressly required to be “neutral” or “impartial”, “independent”, have “undergone training” and be “certified competent to conduct mediation”. We, and others, in our submission on the Rule, proposed that mediators be accredited by the Dispute Settlement Accreditation Council (DiSAC) which was established by all the main mediation service providers in South Africa to set world standards for mediators, mediator trainers, coaches and service providers. DiSAC has set those standards and has accredited hundreds of mediators to those standards. Many of them were trained and accredited by Conflict Dynamics and can be accessed on our website.
There is no problem with the Rule only requiring mediators to be impartial and not neutral because it is arguable that mediators can be impartial but never neutral. However, it is unclear why the Rules Board dropped the training and competence requirements and ignored our proposal that mediators be DiSAC accredited. Had it been accepted, it would have ensured that High Court mediators were qualified to world standards and that parties would be provided with world-class mediation. Perhaps the reason for removing any requirement for training and competence is to make it easier for unqualified lawyers, Judges, and others to mediate. The downside of this is that, if parties use unqualified mediators who do not have the necessary training and special skills of accredited mediators, they will receive a poor service and mediation will acquire a bad name.
Fortunately, there are several factors that may mitigate against this, whatever the intentions of the Rules Board may have been. The first is that experienced judges, lawyers and parties know how important it is to use a properly trained, skilled and accredited mediator and so they will probably agree on mediators who are DiSAC accredited. In a recent decision in the Gauteng Division of the High Court, Judge Thlapi ordered the Road Accident Fund ‘to refer the action to mediation as an alternative dispute resolution method and to a qualified mediator agreed upon by the parties within 21 calendar days of the granting of the order’. View order HERE
Furthermore, it seems very unlikely that it will be unreasonable for a party to refuse to agree to an unqualified mediator and for the Court to make adverse costs award against such a party for such a refusal. On the contrary, it may be unreasonable for a party to refuse to agree to an experienced and DiSAC accredited mediator.
Therefore, provided that parties are informed about their rights and how to choose a mediator, they will not agree to unqualified mediators, even if the proposed mediators are qualified lawyers or other professionals.
As we explained in our blog on “Should Judges mediate?” there are serious questions about whether sitting Judges are empowered to mediate at all, and if they are, what qualifications and constraints apply to them. Therefore parties will not be forced to accept a sitting Judge as mediator simply because he or she is a Judge.
The consequence of all this is that market forces, and the right of parties to reasonably refuse to agree to unqualified mediators, will probably prove to be a boost for mediation and DiSAC accredited mediators. Let’s hope this enhances access to justice, the standing of mediation and provides much work for DiSAC accredited mediators.
By John Brand - lawyer, mediator, trainer, and director of Conflict Dynamics Pty Ltd
If you need a mediator click HERE if you want to be trained and accredited as a mediator on Conflict Dynamics’ next Mediator Skills Training course click HERE or contact Craig Hulscher on tel: +27 (11) 669-9579 or e-mail craig@conflictdynamics.co.za