Hendrik Kotze

Hendrik Kotze is a full-time Dispute Resolution practitioner who works as a Commercial Mediator. He is a qualified lawyer and practised as a Barrister at the Cape Town Bar from 1992 to 1998. He obtained his LLB in 1986 (Stellenbosch) and holds LLM degrees from Cambridge University (1990) and the University of Stellenbosch (1991). He is a lead trainer with Conflict Dynamics on their Commercial Mediation Skills Training Programme. Hendrik currently serves as the Chair of South Africa’s Dispute Settlement Accreditation Council [“DiSAC”], a body that regulates accreditation and practice standards for the mediation industry in South Africa. He is also a member of the Advisory Committee of the South African Law Reform Commission.

In the past mediation was a sideshow for many legal practitioners. It could easily be ignored or side-stepped. This is increasingly more difficult to do because of the introduction of Rule 41A into the Uniform Rules of Court. Because of Rule 41A even reluctant parties are now required to commit to a mediation process, or face punitive cost measures. The increasingly strong stance of the Courts in ensuring that Rule 41A is complied with (see the recent Court Directive issued in Limpopo Division of the High Court[1]) means that even more cases will in the future be mediated.

This means that most legal practitioners will at some point have to participate in mediation, and will have to understand how to best represent their parties in mediation proceedings.

Many progressive practitioners have already actively embraced the opportunities offered by Rule 41A. They see it as an effective mechanism to try and get an early positive result for their clients. In order to use this process effectively, practitioners need to add some essential skills to their armoury.

An effective mediation representative (“mediation advocate” seems to be the term commonly used for a legal practitioner representing a party in a mediation process), needs to have at least the following skills:

• Understanding the mediation process

  Legal practitioners need to know what will happen during the mediation process, and what they are required to do. What are the basis rules of the mediation process? What is the role of the mediator? How does the mediation process unfold? What am I required to do at the various stages of the mediation process?

• Understanding the logistics of mediation

  Legal practitioners are involved in setting up mediation processes and need to understand how this works. How is a mediation process initiated? Where do I find a qualified and reputable mediator? How much, and when should we pay for mediation? What does an agreement to mediator look like?

• Understanding why mediation works

  At least 75% of commercial mediation result in settlement[2]. A good mediation advocate will want to know more about why mediation is effective in achieving a settlement. Understanding the methodologies used by mediators, and the psychology of the process is essential for being a good representative.

• Developing a negotiation strategy

  Mediation is a facilitated negotiation process.. Preparation for the mediation process should produce a clear negotiation strategy that identifies (i) why settlement is important for both parties, (ii) what a realistic outcome (or goal) for the negotiation might be, and (ii) the tactics that will be used to achieve that outcome.

  This requires a detailed analysis of the personalities involved, of the dispute, of the parties’ needs and interests, and of the alternative outcomes. Based on this you need to assist your client in quantifying what a realistic settlement might look like – in other words, an outcome that is more attractive than their other alternatives (such as ongoing litigation).

• Preparing the client for mediation

  Mediation advocacy is also about preparing your clients for the mediation process. This not only means giving them an understanding of the process but also getting them to make a mind shift to understand that the mediation process is a non-adversarial exercise aimed at resolving their dispute in the most realistic manner. If they approach the process with realistic expectations, it has a much better chance of success.

  All of this combines to present as a whole new skill set for legal practitioners. Those who are prepared to invest in developing their skills will have better results than practitioners who come unprepared. As with most things in life, a negotiator is more effective when acting purposely, rather than by simply reacting to the other party or parties.

  To discuss acquiring skills for Rule 41A and Mediation Advocacy, contact Craig Hulscher on +27 10 036 3700 on craig@conflictdynamics.co.za