MEDIATION

Saving on government disputes

Ministers Donald Grant, Anton Bredell and Alan Nelson
Ministers Donald Grant and Anton Bredell.JPG

Local government is constantly dealing with contracts of various natures. Whether one takes into account the amount of tenders or general services contracted for service delivery, the fact remains that legal challenges related to these contracts do remain common. 

In legal terms, mediation refers to a process by which a mediator assist the parties in a legal dispute by facilitating discussions between the parties; assisting them in identifying issues; exploring areas of compromise; and generating options in an attempt to resolve the dispute. Mediation is also considered an alternative to having disputes settled in court.

To save ratepayers the millions spent on the legal and the non-legal costs of local government disputes and to “prevent another Marikane incident in the Western Cape”, the Provincial Government launched the first Local Government Mediation Initiative at the end of last year at the Nelson Wine Estate outside Paarl.

To explore the benefits that mediation holds for local government, Service spoke to Alan Nelson, newly elected chairperson of Mediation in Motion – a not for gain organisation that promotes mediation and assists parties in disputes to find a mediator and to get the process underway with a minimum of expense and delay. Nelson has further set up a Peace Centre on their family farm outside Paarl, where he trains mediators for UCT with his son Daniel and colleague, Advocate Jacques Joubert.

Nelson says to date, mediation has hardly been used anywhere in South Africa let alone in the local government sphere. This according to him is wholly inappropriate given international trends. “Local Governments are expending vast sums of money in litigating matters that could very easily be resolved through mediation at a fraction of the time (within one or two days vs three to ten years) and expense (mediation costs between 0.05 and 0,1% of what litigation does). There are very few disputes that cannot be resolved through mediation and in those instances where a final resolution cannot be attained, mediation can be used to refer specific issues for final adjudication to outside experts,” he says.

Looking at some of the most common challenges faced when dealing with mediation matters, Nelson says the biggest challenges remains ignorance on the part of the parties to disputes of how the process works and the benefits that mediation offers. This he says results in parties not even giving the process a try.

“This has happened in a case in which I have been involved in against the Hermanus Municipality. It has taken four years and the parties are nowhere near finding a solution. Lawyers are also often the problem, either because they too are ignorant about the process or encourage their clients to litigate in the selfish pursuit of their own personal interests. The decision by the Western Cape’s Department of Local Affairs to have mediators trained in every local government in that province accordingly has huge advantages,” he says.

As Nelson points out, throughout the world Mediation was (together with arbitration) previously referred to as an “alternate dispute mechanism”. According to him it is however fast becoming the “preferred mechanism for resolving disputes” with arbitration and litigation becoming the “alternatives”.  He says we have seen huge changes in this regard in countries such as the US, India, Australia and Canada as well as throughout Europe.

Nelson however says South Africa lags far behind the rest of the world. Sadly, according to him, this has a great deal to do with our having inherited adversarial ways of resolving disputes from the Dutch and the English which replaced far better ways of resolving conflicts that existed in our country at the time – and which based on the principle of Ubuntu were much more akin to modern day mediation.  

When asked whether he has any tips on how once can go about avoiding expensive litigation when dealing with mediation Nelson says, “It is very important to find a suitably qualified mediator and to prepare well for the mediation. The latter entails a thorough assessment of both your own as well as the interests, concerns and needs of the other party/parties to the conflict. It is also important to give consideration to what mediators call your ‘no deal options’, ie ‘what will happen if we cannot resolve this dispute through mediation’.

“The most important requirement is however to go into the mediation with an open mind, ready to listen carefully to the other side and with a genuine desire to find a joint solution to the problem. More often than not this ends up being a solution that nobody ever thought about and that costs one of the parties to the dispute very little whilst at the same time offering huge advantages to the other. The fact that mediators have now been trained in almost every local authority in the Western Cape means that each of these bodies are now capable of going into mediations properly prepared.”

So does mediation tie in with service delivery? According to Nelson, there is a direct link. He says local governments are faced with huge challenges spreading scarce economic resources between diverse and frequently conflicting needs. Mediation will enable them to do so in a way that best satisfies the needs and concerns of all of its inhabitants.

Nelson uses the example of an incinerator that is planned for one the areas near to where he lives. “The community is up in arms and mass action is planned to counter the project - it could easily get nasty given that the incinerator will be established next to informal settlements and the poorer part of town. Yet waste needs to be taken care of. These kinds of issues could easily be addressed before a competent mediator in a multi-party mediation.

“The Supreme Court of Appeal recently handed down a judgement overturning a decision of the Cape High Court in which a group of unhappy farmers decided to withhold the payment of their local government taxes. It took ten years for the case to wind its way through the courts. Although the municipality eventually won the case it will not be able to recover all of the costs that it incurred, many of the farms must now be sold in execution to recover the outstanding taxes plus interest and the effect on the local community and economy is devastating. This matter could very easily have been mediated, probably in less than a day and at a fraction of the costs (something like 0,05%).

“I recently mediated a dispute for a local authority where disgruntled inhabitants unlawfully occupied newly built houses that had been allocated to others. It would have taken four years and perhaps more to resolve the dispute through our courts. After less than a day of mediation a practical solution was found with all interested parties perfectly satisfied with the outcome,” he says.

Talking about the recent Local Government Mediation Initiative, Nelson says Minister Anton Bredell was quoted in a local newspaper complaining about the fact that vast amounts of public monies was being wasted on litigation. “I saw the article and in response Mediation in Motion offered to address Municipal Managers on the process.”

After learning about mediation, Minister Bredell however decided that there should be at least one person in every local authority that was properly trained in mediation. According to Nelson, it turned out being a very wise decision. The University of Cape Town in association with MiM further developed a mediation course that is especially tailored for Local Authority Mediators.

UCT and MiM have since been involved in the training of more than eighty mediators for local authorities in the Western Cape. These are held at the Nelson Peace Centre outside Paarl. Most of the delegates have described the course as the best that they have ever attended. Recently the Department of Environmental Affairs also sent delegates for training and other Western Cape Government Departments are following suit.

“I have no doubt at all that South Africans have the necessary skills to make mediation the mainstream mechanism for resolving disputes. Good mediators do not need to be lawyers. Because disputes are resolved by focussing on needs, interests and concerns rather than what the law says, non-lawyers are in fact often better mediators.  Subject knowledge is however an important advantage. What impressed me most during the training of local authority mediators was the high level of skill exhibited by almost all of the delegates. Public servants are generally committed to serving people and this is one of the most important attributes that a mediator needs.  We saw this demonstrated over and over during the training.  

“And then African people also seem to have an inbred ability to approach conflict from a different angle that has much in common with mediation. I think this explains why there were no law books in traditional African culture where in the spirit of Ubuntu problems were resolved through discussion and listening,” he says.

There are in Nelson’s view only two requirements going forward: The first is to ensure that there are enough well trained mediators on hand throughout the country; and The second is to make sure that everyone is aware of the huge benefits that the process has to offer.

So can legislation be introduced to promote mediation? According to Nelson, when it comes to mediation, it “cannot really be imposed by legislation.” For mediation to work, it needs to be a voluntary process and that is why it cannot be imposed he explains. “This means that the parties need to come to the mediation table because they want to at least give the process a try. They must be free to leave whenever they desire subject only to first having a discussion with the mediator, (who if sufficiently skilled, will in any event probably keep them at the negotiating table),” he says.

Nelson does however point out that there are already 44pieces of legislation that encourages parties to make use of mediation - and he is sure that there are many more that can be adapted. “In some countries it is regarded as being a very serious misdemeanour for lawyers not to advise their clients properly about mediation before they litigate. I think that similar rules for lawyers in South Africa would probably make a big difference,” he says.

He further highlights that our courts should also make adverse costs findings against litigants that refuse to even try mediation regardless of the outcome of the litigation. Nelsons says there is already one case in which a South African Judge who was trained in mediation decided to deprive lawyers that did not advise their clients about mediation of their fees. “I am firmly of the view that mediation is the only way forward for South Africa. If we embrace it, South Africa will most certainly become a truly peaceful country and the next economic giant of the world.  The fact that China leads the world economically has much to do with the fact that when times were at their most difficult they had one mediator for every hundred people and hardly any lawyers or litigation,” Nelson concludes. 

 

 

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