the essence of mediation 18 july 2014 presented by john brand to group one – johannesburg bar

THE ESSENCE OF MEDIATION18 JULY 2014

Presented by John Brand

to Group One – Johannesburg Bar

INTRODUCTION

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?

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

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.”

WHAT IS MEDIATION?

There are two relevant kinds of mediation:

• Facilitative

• Evaluative

WHAT IS MEDIATION? CONFLICT MANAGEMENT

PROCESSES

1

2

3 4

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



• 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



• 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


• 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

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


• Control over process and outcome

• Cost

• Positive impact on relationships

• Creativity

• Addressing of needs

• Addressing of causes


• Management of complexity

• Delivering mutual gain outcomes

• Bridging mistrust

• Bridging poor communication

• Bridging lack of skill

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


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


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


Growth of mediation in the United Kingdom

2003 2005 2007 2010 2012 20130

1,000

2,000

3,000

4,000

5,000

6,000

7,000

8,000

9,000

10,000

SchemesDirect ReferralsService Providers


• EUROPE

Active mediation culture in:

• United Kingdom Sweden

• England and Wales Greece

• France Netherlands

• Italy Spain

• Denmark Portugal

• Finland Norway

• Ireland Germany


• EUROPE

Emerging mediation culture in:

• Russia

• Bosnia

• Slovenia

• Czech Republic

• Slovakia


• 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


• A mediation culture is also well established in:

• USA

• Canada

• Australia and New Zealand

• South America

• Africa• Nigeria• Ghana• Uganda• Mauritius• Rwanda• Namibia


• EUROPE

• There has been such mediation growth in Europe that the European Commission has issued a directive to harmonise European mediation


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

Strongly disagree

Disagree

Neutral

Agree

Strongly agree

RESPONSE %

18

30

15

27

10

COUNT

13

22

11

20

7

73TOTAL RESPONSE

http://www.centredemediationculture.com/IMI-full-results.pdf

IN HOUSE COUNSEL SURVEY



Parties to an arbitration proceeding should be actively encourage by arbitration provider to use mediation to settle their dispute

Strongly disagree

Disagree

Neutral

Agree

Strongly agree

RESPONSE %

32

42

22

3

1

COUNT

23

31

16

2

1

73TOTAL RESPONSE





I expect my arbitration and litigation counsel to have been trained in mediation advocacy skills

Strongly disagree

Disagree

Neutral

Agree

Strongly agree

RESPONSE %

32

48

14

5

1

COUNT

23

35

10

4

1

73TOTAL RESPONSE



WHAT ABOUT SOUTH AFRICA?

LIKE A CHEETAH

SPRINTING AHEAD

OR


LIKE RIP VAN WINKEL

SLEEPING THROUGH A REVOLUTION


• Legacy of mediation

Traditional African dispute resolution

Labour mediation – IMSSA and the CCMA

The Peace Process and political transition

Family mediation

International mediation


• 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


• Service providers have been established – eg.

Tokiso

Equillore/Accord

Cape Chamber

• Standards have been set

DISAC


• Advocacy training has taken place

Conflict Dynamics

LEAD

• There has been some Statutory change

plus 40 Statutes

But no overarching UNCITRAL Model Mediation Law


• 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


• Ethical duty

none

• Pledges

none

• Lawyer support

limited

• Incidence

very low

• Awareness

very low

OBSTACLES TO CHANGE IN SOUTH AFRICA

Mediators in the Conflict Dynamics 2013 Survey identified the following obstacles:

Lack of awareness of mediation

Perceived threat to legal profession

Adversarial approach of lawyers

Absence of compulsory mediation

Absence of supporting legislation

Apparent lack of support for mediation by the judiciary

Other

0 10 20 30 40 50 60 70 80 90 100

http://www.conflictdynamics.co.za/NewsArticle/2013-Mediator-Survey-results

%

WHAT NEEDS TO BE DONE IN SOUTH AFRICA

• AWARENESS BUILDING

• Judiciary

• Government

• Business

• Lawyers

• Law students


• CREATION OF A DUTY TO MEDIATE

• Contract

• Pledges

• Court Rules

mandatory

non-mandatory


• CREATION OF A DUTY TO MEDIATE

• Practice Directives

• Legislation

mandatory

non-mandatory

• Judges – active case management and costs awards


• CONTINUED MEDIATOR TRAINING

• Trained to world standards

• With accreditation and credibility


• ESTABLISHMENT OF SERVICES

• Need for more quality services

court aligned

private

pro bono

• Delivering to the top and the bottom of the market


• MEDIATOR ADVOCACY TRAINING

• Lawyers

• In-house Counsel

• Parties

CONCLUSION

• Huge potential benefits

• Rich experience to build on

• Need to keep pace with the rest of the world

the essence of mediation 18 july 2014 presented by john brand to group one – johannesburg bar

Documents

medicolegal litigation

following problems

legal advisers

essence of mediation

long problems

ex uk lord chief justice

relevant kinds of mediation

litigationlord woolf