1. THE ESSENCE OF MEDIATION 18 JULY 2014 Presented by John Brand to Group One – Johannesburg Bar

2. INTRODUCTION

3. OUTLINE What is mediation? Problems with litigation Advantages of mediation An international overview What about South Africa? Obstacles to change in South Africa What needs to be done in South Africa?

4. WHAT IS MEDIATION? Mediation is a voluntary process in which a mutually acceptable third party helps the parties to a dispute to try to reach an agreed settlement

5. WHAT IS MEDIATION? Brassey AJ “Mediation can produce remarkable results in the most unpropitious of circumstances… The success of the process lies in its very nature. Unlike settlement negotiations between legal advisers, in themselves frequently fruitful, the process is conducted by an independent expert who can, under conditions of strict confidentiality, isolate underlying interests, use the information to identify common ground and, by drawing on his or her own legal and other knowledge, sensitively encourage an evaluation of the prospects of success in the litigation and an appreciation of the costs and practical consequences of continued litigation, particularly if the case is a loser.”

6. WHAT IS MEDIATION? There are two relevant kinds of mediation: Facilitative Evaluative

7. WHAT IS MEDIATION?

8. PROBLEMS WITH LITIGATION Lord Woolf, the ex UK Lord Chief Justice identified the following problems with medico- legal litigation in particular: Medico-legal litigation fails to meet the needs of litigants on both sides Legal costs are disproportionate to the damages which might be recovered The complexities of medico-legal litigation can result in relatively greater delays in getting to trial Cases without merit are often pursued Clear cut claims are often defended for too long

9. PROBLEMS WITH LITIGATION Lord Woolf, the ex UK Lord Chief Justice identified the following problems with medico- legal litigation in particular: The success rate (for plaintiffs) is lower than in other personal injury litigation The suspicion between the parties is more intense and the lack of co-operation frequently greater than in many other areas of litigation For both parties there are very significant costs of - gathering evidence preparing for trial attending trial

10. PROBLEMS WITH LITIGATION Lord Woolf, the ex UK Lord Chief Justice identified the following problems with medico- legal litigation in particular: For plaintiffs, the impact on their health, financial well-being and families can be huge For respondents (medical professionals, hospitals), the impact also includes potential reputational harm and increased insurance premiums

11. PROBLEMS WITH LITIGATION The limits of legal solutions Outcomes are unpredictable Litigation is backward looking Litigation delivers win/lose outcomes Litigation harms relations Litigation is rights focused Litigation is often a hindrance to access to justice

12. ADVANTAGES OF MEDIATION Settlement CEDR in the UK estimates that of the +- 9500 civil disputes mediated in the UK each year 75% are settled within one day and a further 11% shortly thereafter

13. ADVANTAGES OF MEDIATION Control over process and outcome Cost Positive impact on relationships Creativity Addressing of needs Addressing of causes

14. ADVANTAGES OF MEDIATION Management of complexity Delivering mutual gain outcomes Bridging mistrust Bridging poor communication Bridging lack of skill

15. INTERNATIONAL OVERVIEW UNITED KINGDOM AS AN EXAMPLE Rule changes 1999. Woolf reforms and 2013 Jackson reforms Pre-action protocols Case law Halsey v Milton Keynes General NHS Trust PGF II SA v OMFS Company I Limited Ethical duty Government pledge CEDR / CPR Pledge Law firm support

16. INTERNATIONAL OVERVIEW UNITED KINGDOM AS AN EXAMPLE As a consequence the Centre for Effective Dispute Resolution (CEDR) in the UK says: The value of cases mediated in the UK in 2013 was approximately £9 billion up from £7.5 billion in 2012 Since 1990 the total value of mediated cases is approaching £65 billion Commercial mediation saves UK business around £4 billion a year in wasted management time, damaged relationships, lost productivity and legal fees Since 1990 mediation has contributed savings of £17.5 billion

17. INTERNATIONAL OVERVIEW UNITED KINGDOM AS AN EXAMPLE CEDR in the UK says: By way of a comparator, the aggregate value of mediation fees is around £22.5 million

18. INTERNATIONAL OVERVIEW Growth of mediation in the United Kingdom

19. INTERNATIONAL OVERVIEW EUROPE Active mediation culture in: United Kingdom Sweden England and Wales Greece France Netherlands Italy Spain Denmark Portugal Finland Norway Ireland Germany

20. INTERNATIONAL OVERVIEW EUROPE Emerging mediation culture in: Russia Bosnia Slovenia Czech Republic Slovakia

21. INTERNATIONAL OVERVIEW ASIA AND THE MIDDLE EAST A mediation culture is also well established in: Singapore Pakistan Hong Kong China Thailand Japan Bangladesh India Saudi Arabia Israel

22. INTERNATIONAL OVERVIEW A mediation culture is also well established in: USA Canada Australia and New Zealand South America Africa Nigeria Ghana Uganda Mauritius Rwanda Namibia

23. INTERNATIONAL OVERVIEW EUROPE There has been such mediation growth in Europe that the European Commission has issued a directive to harmonise European mediation

24. INTERNATIONAL OVERVIEW The 2013 International Mediation Institute survey of international corporations found that in house counsel say that: Mediation should be a compulsory procedural step in the conduct of all commercial disputes, in both litigation and arbitration RESPONSE% 18 30 15 27 10 COUNT 13 22 11 20 7 73 TOTAL RESPONSE http://www.centredemediationculture.com/IMI-full-results.pdf IN HOUSE COUNSEL SURVEY

25. INTERNATIONAL OVERVIEW The 2013 International Mediation Institute survey of international corporations found that in house counsel say that: Parties to an arbitration proceeding should be actively encourage by arbitration provider to use mediation to settle their dispute RESPONSE% 32 42 22 3 1 COUNT 23 31 16 2 1 73 TOTAL RESPONSE http://www.centredemediationculture.com/IMI-full-results.pdf IN HOUSE COUNSEL SURVEY

26. INTERNATIONAL OVERVIEW The 2013 International Mediation Institute survey of international corporations found that in house counsel say that: I expect my arbitration and litigation counsel to have been trained in mediation advocacy skills RESPONSE% 32 48 14 5 1 COUNT 23 35 10 4 1 73 TOTAL RESPONSE http://www.centredemediationculture.com/IMI-full-results.pdf IN HOUSE COUNSEL SURVEY

27. WHAT ABOUT SOUTH AFRICA? LIKE A CHEETAH SPRINTING AHEAD OR

28. WHAT ABOUT SOUTH AFRICA? LIKE RIP VAN WINKEL SLEEPING THROUGH A REVOLUTION

29. WHAT ABOUT SOUTH AFRICA? Legacy of mediation  Traditional African dispute resolution  Labour mediation – IMSSA and the CCMA  The Peace Process and political transition  Family mediation  International mediation

30. WHAT ABOUT SOUTH AFRICA? Mediator training  Over 300 commercial mediators have been trained and accredited to world standards by: −The Centre for Effective Dispute Resolution (CEDR) UK −Conflict Dynamics and The African Centre for Dispute Settlement −Royal Institute of Chartered Surveyors −ADR Group UK

31. WHAT ABOUT SOUTH AFRICA? Service providers have been established – eg.  Tokiso  Equillore/Accord  Cape Chamber Standards have been set  DISAC

32. WHAT ABOUT SOUTH AFRICA? Advocacy training has taken place  Conflict Dynamics  LEAD There has been some Statutory change  plus 40 Statutes  But no overarching UNCITRAL Model Mediation Law

33. WHAT ABOUT SOUTH AFRICA? There has been a minor Rule change  Magistrate Court Court-Annexed Mediation Rule March 2014 Corporate Governance requires mediation  King III There has been very limited judicial activism  MB v NB 2010(3) SA 220

34. WHAT ABOUT SOUTH AFRICA? Ethical duty  none Pledges  none Lawyer support  limited Incidence  very low Awareness  very low

35. OBSTACLES TO CHANGE IN SOUTH AFRICA Mediators in the Conflict Dynamics 2013 Survey identified the following obstacles: http://www.conflictdynamics.co.za/NewsArticle/2013-Mediator-Survey-results %

36. WHAT NEEDS TO BE DONE IN SOUTH AFRICA AWARENESS BUILDING Judiciary Government Business Lawyers Law students

37. WHAT NEEDS TO BE DONE IN SOUTH AFRICA CREATION OF A DUTY TO MEDIATE Contract Pledges Court Rules  mandatory  non-mandatory

38. WHAT NEEDS TO BE DONE IN SOUTH AFRICA CREATION OF A DUTY TO MEDIATE Practice Directives Legislation  mandatory  non-mandatory Judges – active case management and costs awards

39. WHAT NEEDS TO BE DONE IN SOUTH AFRICA CONTINUED MEDIATOR TRAINING Trained to world standards With accreditation and credibility

40. WHAT NEEDS TO BE DONE IN SOUTH AFRICA ESTABLISHMENT OF SERVICES Need for more quality services  court aligned  private  pro bono Delivering to the top and the bottom of the market

41. WHAT NEEDS TO BE DONE IN SOUTH AFRICA MEDIATOR ADVOCACY TRAINING Lawyers In-house Counsel Parties

42. CONCLUSION Huge potential benefits Rich experience to build on Need to keep pace with the rest of the world