I have worked as a mediator in South Africa (SA) for 35 years and in the United Kingdom (UK) for 20 of those years. Over this period, the use of mediation in civil and commercial disputes in the UK grew from approximately 2,500 mediations in 2003 to approximately 17,000 mediations in 2022. There are unfortunately no reliable comprehensive statistics about the growth of civil and commercial mediation in SA over this period.

This article is based on a talk I gave at a recent conference arranged by the Kwa Zulu Natal Society of Mediators. I will consider, in the article, how the attitude of the judiciary, the reforms of the government, and the actions of lawyers have contributed to this change in the UK, particularly in England and Wales (E&W)[1], and conversely, how much has yet to be done to facilitate access to justice using mediation in SA.

Background

Mediation is not mandatory in E&W, so what has caused this growth in the use of mediation? In his 1996 report, "Access To Justice", Lord Justice Woolf recommended that alternative dispute resolution (ADR) processes should be encouraged to supplement the judicial system and provide the parties to a dispute with a cheaper and, in most cases, less adversarial alternative to a lengthy court hearing or arbitration. In particular, the Woolf Report sought to create an environment where litigation would be the last resort for disputing parties and, where there was litigation, it would be "less adversarial and more cooperative".

Lord Woolf also recommended that legal aid should be available for ADR and that there should be penalties, perhaps by way of costs sanctions, for parties who were deemed to have unreasonably refused to participate in ADR or acted unreasonably during the ADR process. The ADR he referred to included mediation, which has become the predominant form of ADR in E&W.

These recommendations were followed shortly thereafter by a wholesale revision of the civil procedure rules, also introducing the pre-action protocols and practice directives. Parties were required to confirm, when seeking directions after filing their claim and defence, that they had considered using mediation to resolve the dispute, and if they had decided not to use mediation, to explain, why they had made that decision. The requirement to consider ADR before the issue of proceedings has been tightened subsequently by the pre-action protocols.

This requirement is very similar to the SA High Court Rule 41A (March 2020) and the Magistrates Court Rules 70 to 79 (June 2023). In this respect, SA is about 23 years behind E&W in encouraging civil mediation. SA has a proud and very successful tradition of using mediation to resolve labour/management, community, and family disputes. This stretches back to the 1980s with the establishment of the Independent Mediation Service of South Africa (IMSSA), and the work done in the Family Courts. In addition, our transition to democracy was facilitated by the use of consensus-building skills, employed by many of those who had worked as mediators in IMSSA, and led by the commitment to negotiation of President Nelson Mandela. In the years following the 1994 elections, consensus-based processes such as mediation, conciliation, and facilitation were included in as many as 50 pieces of legislation such as including legislation to facilitate land redistribution.

It was therefore strange that the civil justice system was so slow to consider using mediation in civil and commercial litigation. It was only in 2014 that ‘court-annexed mediation’ was included in Magistrates’ Court rules. These rules were however so poorly conceived and their implementation so under-resourced that the use of mediation in the Magistrates Courts has been negligible.

The role of the judiciary

Shortly after the Woolf recommendations, judges in E&W started acting on the idea that there should be penalties for parties who have unreasonably refused to participate in ADR or who have acted unreasonably during the ADR process. The first costs sanctions emerged as early as 2002 in the case of Dunnett v Railtrack EWCA Civ 302. In this case, costs penalties were imposed on a successful litigant because of its unreasonable refusal to mediate. The jurisprudence in E&W has developed since then confirming that an unreasonable refusal to mediate will, in all likelihood, attract an adverse costs order.

In contrast, judges in SA are only now beginning to consider adverse cost awards when participation in ADR in terms of Rule 41A has been refused. In a very recent case, Hilary Maclean v The Butcher Shop and Grill CC 6 November 2023, Acting Judge AD Maher considered a submission by the defendant that the plaintiff should be liable for costs because of a refusal to mediate. The judgment is worth reading for its discussion about the implications of Rule 41A and the conduct of attorneys in particular. In relation to costs awards, the judge made the following comments:

A failure to engage constructively to a proposal to mediate or to ignore or reject such overtures without furnishing cogent, adequate and full reasons for the rejection cannot be countenanced and a response of this kind may well have consequences when liability for costs arises for determination at trial.

In the end, however, a costs order was not made against the plaintiff but was made against the defendant.

Other judgments are emerging on other aspects of Rule 41A. For example in Koetsioe and Others v Minister of Defence and Military Veterans and Others ( 12096/2021) 1, where Judge Davis, J stated:

[Rule 41A] not only requires a notice but clearly contemplated that a party must have considered the issue earnestly prior to exercising its election. This is clear from the requirement that a party must state its reasons for its belief that a dispute is or is not capable of being mediated.

A significant early decision in relation to the use of mediation in divorce matters was in the case of MB v NB (2010) (aka Brownlee v Brownlee) (3) SA 220 (GSJ) in which the court precluded the attorneys from recovering the full fees that they would otherwise have charged their clients. The court restricted them to charging fees at the reduced rate known as the ‘party and party scale’ because they had failed to advise their clients about the availability of mediation as a process that could have been used to resolve their dispute.

Many judges in E&W have attended mediator training and, for example, I was privileged to assess Lord Woolf when he gained his CEDR accreditation. He undertook this training in his retirement, in order to extend his skills to mediation as an addition to his already considerable skills in adjudication. It is useful to have both sets of skills, although the roles of mediator and adjudicator are two very different roles and must, in practice, be kept separate.

Hopefully, judges in SA will further embrace the opportunity that mediation offers to improve access to justice (and to streamline their management of cases). It remains to be seen whether there will be more judgments where judges deal with whether and how parties should mediate in terms of Rule 41A.

The legal profession

The approach taken by judges is to a very large extent predicated on the arguments put forward in cases by attorneys and advocates.

In E&W, it is unusual these days to encounter a solicitor or barrister who is unfamiliar with mediation or who has not participated in a mediation. Indeed, most large law firms have rebranded their litigation department and now call them ‘dispute resolution departments’. The trend these days is in fact to talk of ‘integrated dispute resolution’, rather than ‘alternative dispute resolution’, because mediation has become integrated into the range of dispute resolution options offered by lawyers to their clients.

This idea is central to an appeal case in court at the moment, Churchill vs Merthyr Tydfil CBC. In the case, three dispute resolution bodies have been permitted to intervene so as to argue that the 2004 Court of Appeal decision in Halsey v Milton Keynes NHS Trust [2004] EWCA Civ 576 which purported to hold that to compel parties to mediate was a breach of provisions in the European Convention on Human Rights guaranteeing the right to a fair trial. This aspect of the Halsey decision has been much criticised over the years.  If this challenge is successful, we will see a shift in E&W from the view that:

It is one thing to encourage the parties to agree to mediation, even to encourage them in the strongest terms. It is another to order them to do so. It seems to us that to oblige truly unwilling parties to refer their disputes to mediation would be to impose an unacceptable obstruction on their right of access to the court…under Article 6.

Lord Justice Dyson, Halsey [2004]

to the view that :

…… any form of ADR which is not disproportionately onerous and does not foreclose the parties’ effective access to the court will be compatible with the parties’ Article 6 rights. If there is no obligation on the parties to settle and they remain free to choose between settlement and continuing the litigation then there is not…….. “an unacceptable constraint” on the right of access to the court.

Lady Justice Asplin – CJC report on Mandatory Mediation

Lawyers in SA cannot be said to have the same level of awareness or experience of mediation as those in E&W. There is a considerable need in SA for what in E&W is called, ‘mediation advocacy training’. This training is offered to lawyers and other representatives and seeks to educate them on the mediation process, how to prepare for the process, and how to make the most of it, particularly how to negotiate effective outcomes for their clients.

There are, of course, those South African attorneys who do take Rule 41A seriously and have made costs applications when their efforts to use mediation have been frustrated. We need more of these types of attorneys if mediation is to become properly integrated into the civil dispute resolution culture in SA. Hendrik Kotze, a Conflict Dynamics mediator and trainer, says the following:

…. we have some way to go before Rule 41A changes our landscape. However, the Rule will at least introduce mediation to more and more practitioners, and we know that once people have seen the magic of this process in action, many do become believers. [2]

Government

The government in E&W formally pledged, in 2001, to use ADR to resolve disputes wherever possible. This commitment that government departments and agencies made use of ADR in all suitable cases, whenever the other party accepts it, has meant that mediation has become central to the management of disputes involving the State. Like many commercial contracts, a large number of contracts involving public bodies now contain a dispute resolution clause requiring the use of mediation before litigation, and such clauses are enforced by the courts.

The government has also supported court-annexed mediation in County Courts by contracting private mediation providers to mediate claims, and by supplying resources to facilitate mediation in the form of administrative support and offices for the mediation to take place.

In 2023, the Ministry of Justice in E&W undertook a consultation process on mandatory mediation the outcome of which is summarized in these statements:

“I am pleased to confirm the Government’s intention to fully integrate mediation into the court process for civil claims valued up to £10,000. We will aim to make mediation an essential step for all claims for specific amounts of money…. ….We also remain committed to integrating mediation in the court journey for higher value civil claims. …These reforms are not about restricting people’s access to the courts, but about expanding their avenues to redress. The goal behind this change is not just a more efficient, effective, and sustainable justice system; it is swifter and better outcomes for the people who use it”. [3]

The E&W government has thus clearly committed itself to increasing the use of voluntary mediation in the civil justice system and is now venturing further towards making mediation mandatory in certain matters.

While some comments supportive of mediation have been made over the years by the South African government [4], very little action on its part is evident. Indeed, references to mediation on the Department of Justice and Constitutional Development (DoJCD) website have not been updated since 2014 when the ineffective Magistrates Court mediation rules were published. Even when applications were made against the State to use mediation in disputes relating to the COVID pandemic, they were met with a closed door. Mediation was added to the dispute resolution provisions of regulations of the Disaster Management Relief Act 2002 in 2020 as the pandemic took off in SA and internationally. Unfortunately, mediation was not used at all in the many disputes that arose against the State at that time.

Recent trends in mediation

The biennial CEDR Mediation Audit provides insight into the trends in mediation in the United Kingdom (UK). [5] As mentioned earlier, there were approximately 17,000 mediations in the UK in 2022, with 64% of them being conducted online. Of these 72% settled on the day, 20% shortly thereafter, and 8% were unresolved. The average mediation involved 15.8 hours of work by the mediator: preparation of 6.3 hours; 7.4 hours on the mediation day; and 2.1 hours of follow-up.

The survey provides many more statistics on, for example, the demographics of mediators and their income.

The CEDR survey is conducted in collaboration with other mediator providers in the UK and is therefore broadly representative of trends in the industry. It is unfortunate that there is no similar survey in SA. Conflict Dynamics invites other providers to join it in such an endeavor.

Since the days of IMSSA, I have held the view that, for mediation to be taken seriously, one needs well-trained competent mediators. “Mediators are only as good as their last mediation” might be merely an opinion, but it carries some weight.

Quality mediator training in any jurisdiction is training that conforms with local and international standards. The Civil Mediation Council (CMC) [6] in the UK is a neutral and independent body set up to promote the resolution of conflicts and disputes. It encourages the use of mediation and other dispute resolution techniques and methods and seeks to advance the education of the public in matters of mediation and other dispute resolution techniques and methods. It provides for voluntary training provider and mediator registration. The equivalent body in SA is the Dispute Settlement Accreditation Council (DiSAC). [7]

Quality training providers in the UK and those in SA are registered with these respective bodies.

A further step is registration with the International Mediation Institute (IMI)[8]. The main mediator training providers in the UK are also accredited by the IMI. Conflict Dynamics is the only mediator training provider in SA accredited by the IMI.

The basic local and international accreditation standard for effective mediator training is that mediator training courses should take place over a minimum of 40 hours and include assessment. The teaching methodology should be competency-based, participative, and practitioner-focused. There should be a high student/faculty ratio and the training should take place on a face-to-face basis.

In conclusion

Mediation is well established in SA in labour/management and family disputes, but it has been very slow to take off in civil and commercial disputes in spite of the fact that there are both legislation and court rules that provide an enabling environment. There are many well-trained, accredited civil and commercial mediators in SA ready to provide mediation services to parties in disputes.

The question is whether South African judges, the DoJCD, attorneys, and advocates will take seriously the opportunity that mediation offers to enhance access to justice and use these mediators. The jury is still out.

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[1] I will refer to England & Wales in relation to the actions of the judiciary, the state, and the legal profession instead of the UK, as the legal provisions and experiences in Scotland and Northern Ireland are different in many respects.

[2] https://www.conflictdynamics.co.za/Blog/Weaponizing-Rule-41A

[3] https://www.gov.uk/government/consultations/increasing-the-use-of-mediation-in-the-civil-justice-system/outcome/increasing-the-use-of-mediation-in-the-civil-justice-system-government-response-to-consultation#:~:text=Following%20this%20feedback%2C%20I%20am,small%20claims%2C%20during%20this%20Parliament.

[4] https://www.conflictdynamics.co.za/Blog/Uniform-Rule-41A-(Mediation-as-a-dispute-resolution-mechanism)

[5] https://www.cedr.com/wp-content/uploads/2023/02/Tenth-CEDR-Mediation-Audit-2023.pdf?utm_source=foleon&utm_medium=lead-magnet&utm_campaign=mediation-audit

[6] https://civilmediation.org/

[7] http://disac.co.za/

[8] https://imimediation.org/