Adv Jacques Joubert

Independent Mediation Analyst

Commercial Mediator

Woza Mediation South Africa Blog!

Latest news on court-annexed mediation - read all about it....

Tuesday, 10 June 2014

 The Department of Justice launches the first phase of court-annexed mediation on 1 December 2014 with pilot programmes at 36 magistrate courts across the country. Mediation clerks, employees of the DOJ are being trained to administer the programme on behalf of the DOJ. The next phase of the DOJ’s programme is to roll the programme out to all the magistrate courts in South Africa. It is envisaged that the final phase will be to implement court-annexed mediation at the high courts and to pass legislation that will establish a national mediation authority to formally recognise mediation as a profession.

The Mediation Advisory Committee, chaired by judge Sardiwalla shall in the interim, if the Minister of Justice signs off on it, set the accreditation standards for court-annexed mediators and adopt an interim code of conduct applicable to them. It is suggested that the Committee in the interim make arrangements for senior magistrates to hold enquiries if and when alleged breaches of the code of conduct are reported. In the long-term a national mediation authority should set accreditation standards and ensure compliance with the mediators’ code of conduct.

If the successful recent mediation workshop hosted by the DOJ in Johannesburg is anything to go by, training courses that offer 40 hour 5 days (not necessarily consecutive) contact training will satisfy the provisional accreditation requirements of the Mediation Advisory Council. (DISAC requires training organisations to certify that they comply with DISAC's standards, before accrediting them provisionally.) Mediators who have undergone such training will therefore in the interim be eligible for appointment as court-annexed mediators. It is envisaged that a national mediation authority created by legislation will in the long-tem determine the requirements to become court-annexed mediators, and indeed private mediators offering services outside the realm of court-annexed mediation.

Anyone who expects mediation referrals to start streaming in after 1 December 2014 will be disappointed. Mediators may initially have to volunteer their services free of charge until such time parties are able to fully appreciate the value of mediation.

There are more than enough recently trained commercial mediators in South Africa who are willing to offer their services free of charge to the DOJ, not only to gain experience but also to market themselves as mediators. In the case of mediators who are also lawyers, a further incentive to offer services for free may exist if law societies and bar councils are persuaded to accredit court-annexed mediation as pro bono work. This may be easier said than done because law societies and bar councils use means tests to determine who is eligible for pro bono work. They may however be persuaded to temporarily relax the means test to help kick start the court-annexed mediation programme.

The Mediation Advisory Committee should consider making it a requirement for anyone who wish to become a court-annexed mediator, to make their services available free of charge for the first 6 months of their appointment, where after they may charge the rate prescribed by the Mediation Advisory Council.

With this initiative and other initiatives such as King 111 and 44 pieces of legislation that encourage mediation, it is only a matter of time before commercial mediation gains traction in South Africa (in addition to labour and family mediation, which is already used more often). This will happen increasingly as leaders in the legal profession begin to appreciate the real benefits of mediation. The fear that mediation threatens their bottom lines or earnings will be replaced by an understanding of mediation’s long-term commercial and non-commercial benefits. Fewer lawyers will be swayed by the short-term argument that mediation brings about an alarming drop in revenue, as they themselves begin to act as mediators or represent their clients at mediation. 

Leaders and early adopters in the legal profession are also likely to gradually become aware of a reservoir of potential clients who wish to have their disputes resolved, but at the same time do not wish to venture to court. Only a fraction of disputes end up with lawyers and rather than having to optimise their earnings from resolving the disputes of their existing clients, lawyers could make use of mediation to tap into the reservoir of potential clients who wish to have their disputes resolved without venturing to court. Revenue earned from this untapped source may more than make up for any real or imagined drop in revenue resulting from using mediation to resolve the disputes of their existing clients.

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