© IMPLEMENTING MEDIATION IN THE FORMAL LEGAL SYSTEM - A SOUTH AFRICAN PERSPECTIVE BY EBRAHIM PATELIA

IMPOVERISHED/UNEQUAL NATION © What is the poverty line? It is a measure used to separate the poor and the not poor. Statistics South Africa calculates the poverty line by determining the food and non-food items that are essential for daily survival

EVER ANGRIER ©

CONTEXT OF MEDIATION IN SOUTH AFRICA  Reconciliation legacy – The miracle of the “New South Africa”  Constitutional court – Strong promotion of mediation in a number of matters  Mb v NB – 2009 High Court decision advancing mediation in Divorce matters and setting the potential of costs orders if mediation is not considered in Civil matters.  50 pieces of legislation in South Africa promote the use of ADR which includes mediation  Key areas of mediation through legislation and self regulation  Employment/labour law – Entrenched in legislation (20 year history)  Family law – Children's Act limited definition of mediation, but created the opportunity for mediators to offer their services in divorce matter. Mediation promoted at a societal level and between different professions (psychologist, social workers, lawyers etc)  Court-annexed mediation – introduced as a pilot project in certain Magistrates Courts  Various areas of specialty – environmental, community, housing, sectional-title, tax, etc ©

LABOUR LAW – RIGHTS DISPUTES © Disciplinary and Grievance Procedure These processes must be procedurally and substantively fair If no resolution of the dispute internally to the satisfaction of the parties Step two: Should the matter be referred to Arbitration or Labour Court adjudication? Arbitration (CCMA, Bargaining Council or Private) By operation of law or by agreement Attorneys have limited rights to represent. Arbitration Awards are final and binding. Must be made an order of court by the CCMA director or the Labour Court to enforce. Subject to Review only at the Labour Court. Adjudication (Labour Court or by operation of law) Equal jurisdiction as the High Court Judgment has the Status of a Court order Subject to Review and Appeal at the Labour Court of Appeal. Attorneys may appear at the Labour Courts Step One: Conciliation CCMA, Bargaining Council or Private Mediation, fact Finding or Advisory Arbitration No legal representation allowed Certificate is issued If no settlement at conciliation move to step two INTERNAL DISPUTE RESOLUTION EXTERNAL DISPUTE RESOLUTION

WHEN WE COMMIT TO MEDIATION ©

CCMA CASELOAD TODAY- IS THIS ACCESS TO JUSTICE? ©

SETTLEMENT RATES AT THE CCMA ©

THE CHALLENGING CONTEXT OF LABOUR MEDIATION IN SOUTH AFRICA  MARIKANA – A SCAR ON DEMOCRATIC SOUTH AFRICA  POLITICAL INTERVENTION IN EMPLOYMENT MATTERS  RULE OF LAW IS AT TIMES OVERUN BY POLITICAL POSTURING  THE DEMANDS AT NEGOTIATIONS REFLECT SOCIO-POLITICAL & ECONOMIC FRUSTRATIONS  STRIKE VIOLENCE IS COMMON  COMPLIANCE WITH COURT ORDERS  WHO ARE THE PARTIES?  LIMITED RIGHT TO LEGAL REPRESENATION  LACK OF COMMITMENT TO MEDIATION AND COMPLIANCE IN LABOUR DISPUTES INVOLVING THE STATE  REGULATORY FLEXIBILITY  LACK OF SKILLS OF PARTIES TO NEGOTIATE  CONCILIATION IS A QUICK FIX WITH NO NEEDS PROBING  COMMISISONERS DVELOP BAD HABITS  RETENTION OF GOOD COMMISIONERS  ABUSE OF THE DISPUTE RESOLUTION SYSTEM TO PLAY GAMES DURING NEGOTIATION  LACK OF ADEQUATE USER SURVEYS ©

KEY DRIVERS FOR THE GENERAL SUCCESS OF THE LABOUR SYSTEM  LEGISLATIVE COMMITMENT TO MEDIATION – CLEAR DEFINITION AND PROCESS  DEFINED POWERS AND RULES OF MEDIATORS AND MEDIATION  REGULATED CODES OF CONDUCT  CCMA ACCREDITS AND SANCTIONS MEDIATORS  OVERSEEN BY THE LABOUR COURT – RIGHT TO REVIEW MEDIATOR AND THE CCMA’S CONDUCT  GOVERNMENT FUNDED  FREE SERVICE – LIMITED COST ORDERS  EFFECTIVE CASE MANAGEMENT SYSTEM IS CRUCIAL  CONCILIATION MUST BE SCHEDULED WITHIN 30 DAYS OF REFERRRAL – IF NOT MOVE TO THE NEXT STEP  ADAPTABLE TO DEVELOP SYSTEMS AND PROCESSES TO DEAL WITH UNIQUE DISPUTES SUCH AS DISCRIMINATION DISPUTES  DEVELOPED AND ENHANCED TRAINING CURRICULAM INTERNALLY FROM EXPERIENCE– MOVE TO FORMALISE A QUALIFICATION WITH PARTNERSHIPS AT UNIVERSITIES  OVER 2 MILLION CASES DEALT WITH IN 20 YEARS  GOVERNMENT, BUSINESS, LABOUR AND CIVIL SOCIETY COMMITMENT TO THE CCMA ©

COURT-ANNEXED MEDIATION  290 mediators were appointed at a limited number of courts.  Over 1400 were dealt with in the pilot year.  When people were told payment needs to be made, some were not keen to proceed – the expectation by the public is that the sytsem is funded by government  Sites were not always functional at an optimum level, which is not conducive to mediation.  Huge turnover of clerks and administrators at the courts.  If Magistrates are embracing the process, it will held at reducing the workload.  Need for consistent publicity campaigns ©

A USER FOCUSED APPROACH ©

A COLLABORATIVE WORKING GROUP Set up a small multidisciplinary working group which includes attorneys, mediators, academics, magistrates/judges and government to address the challenges raised. ©

THE EFFECT OF TECHNICAL DEBT Lets deal with issues as they arise and fix it. ©

CASE MANAGEMENT IS KEY World Class case management – this is crucial to ensure that the mediation service is functional and relates to the administrative structures in the court. This requires investment in technology and effective staff ©

REVISION OF THE POLICY FRAMEWORK Comprehensive revision of the policy framework before the next phase of the role out. Mediation should be made compulsory. Mediation should be funded by the state. ©

SURVEYS Implement a survey managed by a provider that will provide constant data that is effective for the monitoring and development of the system and ensuring the objectives are met. To extract value from the surveys we need to remove the barriers in completing them. ©

TRAINING Regulation of training, standards, assesments and certification of mediators Implemneting an education, marketing and collaborative strategy ©

A PROFESSIONAL BODY & STANDARDS Regulation of mediation and mediators through an association of mediators – code of conduct, training, certification etc This must be legislated to limit fragmentation and inconsistencies. ©

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