Adv Jacques Joubert

Independent Mediation Analyst

Commercial Mediator

Woza Mediation South Africa Blog!

Goethe, the San and the art of listening - transforming dispute resolution...

Wednesday, 27 May 2015

The Bushmen or San are the closest relatives of the people that first walked the earth. A few months ago I experienced a powerful demonstration of listening by their leaders in Southern Africa.

 A documentary filmmaker is involved in a dispute with a former radio personality. In short the radio personality claims copyright over the video recording of an expedition of the well-known Kruiper family in the Kgalagadi Transfrontier Park. According to the filmmaker, the author of the video recording, copyright belonged to the traditional leader of the Khomani San, the late Dawid Kruiper. He says the funds allocated by SA National Lotteries for the making of the video was never earmarked to benefit the former radio personality by giving her copyright. Dawid Kruiper, he says had given him a non-exclusive licence to make a film from the video recording to tell the world the story of Kruiper family.

A court hearing their dispute will have to decide who is telling the truth. The risk of such a credibility finding is usually a good enough reason to have a dispute mediated. The former radio personality has however turned down a request by the filmmaker and members of the Kruiper family to mediate the dispute.  Instead she has pulled out all legal and non-legal stops to prevent a beautiful and deeply respectful film from being screened to the world. In doing so the filmmaker believes she is silencing the voice of the San in South Africa.

The filmmaker showed the film to the leaders of the Bushmen and before commenting on the film, they asked him to tell them his side of the dispute. It was then that I experienced a demonstration of listening that I had never experienced before. They gave him the floor and without staring him down they listened intently to every word he had to say, without once interrupting him or making any comments or attempts to guide his narrative. They suspended their judgment and just listened and listened, allowing moments of silence to encourage the filmmaker to open his heart to them. They had created a safe space for him to tell his story behind the dispute. After the filmmaker finished they referred to a scene in his film in which the legendary Bushman tracker Buks Kruiper refers to him as his “brother”.  To be called a brother by Buks, they said was an honour and it meant that they too regarded the filmmaker as their brother. Alan Nelson, a senior advocate and mediator trains aspirant mediators for UCT to listen to the parties with “their whole bodies and their whole souls”. He would have found the San’s demonstration of listening equally compelling.

Commercial mediators are trained in a paradigm in which the mediator generally plays and is expected to play a central role to advance a settlement. To this end the mediator uses confidential and private sessions with the parties to explore possible concessions and proposals that may satisfy their underlying interests. And only when satisfied that one or both of the parties are willing to make helpful concessions or proposals, does the mediator obtain permission to convey a concession or proposal to the other party. It is in the exercise of this discretion that commercial mediation can be so effective. It explains why a commercial mediator should generally have knowledge and experience of the field in which the dispute arose. A mediator with experience of medical negligence claims is hardly going to ask permission to take across a demand that the mediator knows will offend the other party.

The commercial mediation paradigm may however have a limitation in that it does not encourage dialogue between the parties themselves. The mediator is at the apex of the process, thus limiting the potential for mediation to transform the way in which the parties may in future resolve other disputes. The popularity of the commercial mediation paradigm however suggests that it is here to stay, but should it be the only show in town?

Johann Wolfgang Goethe wrote: “What is more illuminating than light?” He answered: “Dialog!” For this reason Mediation in Motion (MiM) and UCT Law@Work is developing a model of mediation where the mediator will not only effectively make use of private sessions, but will also actively look for opportunities to facilitate dialogue at joint sessions between them. In this model mediators prepare the parties during private sessions to have a constructive dialogue, really listening to each other’s concerns during joint sessions. And if the dialogue breaks down, nothing prevents the mediator from reverting back to private sessions.

MiM's mission is to transform the way in which people resolve disputes, and we believe commercial mediators should be open to opportunities to encourage real dialogue between the parties. This is especially important when the parties share a common interest to continue with their relationship. Listening, really listening is of course an integral part of dialogue and Goethe may also have been inspired by the Bushmen leaders’ demonstration of listening.

A few months ago Woza Mediation facilitated (not mediated) a dialogue between a group of people who were in favour of legalising the trade in Rhino horn and a group who were vehemently against any trade. For the first hour they debated the pros and cons, the strengths and weaknesses of each other’s positions. It became a heated conversation and they constantly interrupted each other. I asked them what the chances are that they would be able to persuade each other of their respective positions. They looked at me with surprise but quickly realised that debating the issue would get them nowhere. Within minutes they realised that their respective positions were a means and not an end. They suspended their judgement about who was right and started talking about ways to work together to preserve the Rhino.

Mediators, who have developed their own mediation practises, will know how difficult, time consuming and costly it is to set up mediation. MiM will by the end of June launch a web-based mediation platform that will use an automated process to connect mediators with their clients. This innovative platform will make it easier, less time consuming and far less costly to set up mediation.

It promises to be a game changer for mediation in South Africa and beyond....

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