#Mediation

#Mediation

#Mediation

Alternative Dispute Resolution (ADR)

Mapalo Tsatsimpe

Copyright © 2021 Mapalo Tsatsimpe

First edition 2021

Published by Mapalo Tsatsimpe Publishing at Smashwords

All rights reserved. No part of this book may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording or any information storage or retrieval system without permission from the copyright holder.

The Author has made every effort to trace and acknowledge sources/resources/individuals. In the event that any images/information have been incorrectly attributed or credited, the Author will be pleased to rectify these omissions at the earliest opportunity.

Published by Mapalo Tsatsimpe using Reach Publishers’ services,

P O Box 1384, Wandsbeck, South Africa, 3631

Edited by Lorna King for Reach Publishers

Cover designed by Reach Publishers

Website: www.reachpublishers.org

E-mail: reach@reachpublish.co.za

Mapalo Tsatsimpe

mapalo@worldonline.co.za

Table of Contents

Tribute

Foreword

Chapter 1 Alternative Dispute Resolution (ADR) Process

Chapter 1 Alternative Dispute Resolution (ADR) Process

Chapter 2 Conflict Versus Dispute

Chapter 3 How Mediation Works

Chapter 4 Negotiation

Chapter 5 Negotiation Strategies

Chapter 6 Leadership and Management

Chapter 7 Can Mediation be Taught?

Chapter 8 Benefits of Child, Youth and Women Mediation

Chapter 9 Benefits of Mediation

Chapter 10 Threats to Mediation

Chapter 11 Toolbox for a Mediator

Chapter 12 Voluntary (Private or Freestanding) Mediation

Chapter 13 Advantages and Disadvantages of Voluntary Mediation

Chapter 14 The Labour Relations Act, 66 of 1995 as Amended (LRA)

Chapter 15 Processes Under the LRA

Chapter 16 Commonly Referred Disputes

Chapter 17 Path or Procedure Followed When Referring Alleged Unfair Dismissal Disputes

Chapter 18 Path or Procedure Followed When Referring Alleged Unfair Labour Practice Disputes

Chapter 19 Remedies in Terms of the LRA

Chapter 20 Advantages of ADR Under the LRA

Chapter 20 Disadvantages of ADR Under the LRA

Chapter 22 Common Mistakes Which the Parties in Mediation Should Avoid

Chapter 23 Mistakes by Mediators

Chapter 24 Mistakes Caused by the LRA

Chapter 25 Mistakes Made by the Tribunals

Chapter 26 Can ADR Really Resolve Disputes?

Tribute

There are so many people, young and old, different races, backgrounds, genders, beliefs and other traits who have helped me so far in my life journey. I have not yet arrived and never will. It has been a life-learnt journey, with ups and downs, cries and smiles. It has been a great honour and favour, and with a sense of humility that I have been and will continue to be on this journey. Along the way I have made the best decisions I could and sometimes not so good decisions. I have learnt a lot, from both my best decisions and the bad ones. I have crossed paths with so many people – some made me happy and some hurt me. I have probably made some happy and hurt some, but I still hope to cross paths with many more. This journey has been a life lesson, and I look forward to continuing on it with full knowledge of what it could present – good or bad.

To those who have helped me, thank you very much. Thank you too to those who have made my life a living hell. All experiences are deeply appreciated. God gave me two special parents who loved me so much. To my father, whom I lost when I was two years old, thank you so much daddy. No father could take your place. You were enough even in your absence. To my mother, the pillar of my life, thank you so much too. I could not thank God enough for letting you stay behind when dad was gone (dead). You lived to the age of 93 years, and this was God’s favour to me. I consider myself lucky to be your daughter, your youngster. Mom, you lit my dark days, you brightened my bright days. You stopped the heavy rain from wetting me. You moved mountains for me. You made our house a home. And even though you could not raise my father from the dead, you gave me my dad. Your love was doubled (yours and dad’s). A special thanks to my aunt, Koko Maria Mpini Monedi (the woman I called Grandma-Koko) for caring for me as if I were her own blood. It would be a travesty of justice if I forgot to thank my mother’s uncle, Mr Stoffel Mekgwe.

A big thank you also to my parents-in-law. My father-in-law, although he could not replace my father, made me experience the joy of having a father. A born mediator! An architect and a builder. A bandage for deep, bloody wounds. Thank you so much dad (fondly called Oom Tsa, Motho yo Montle, and Mchana by many).

Huge appreciation must also go to my family – my husband and our two children. Thank you so much for putting up with me, for telling me it would be OK when I doubted that it would. The beautiful, authentic smile and cute dimples on my son’s face – a reminder that whatever life brings (the bad or ugly) is OK and should be celebrated. His stillness melts away all problems. My daughter’s laughter, her carefree attitude to seemingly challenging situations, her belief that nothing lasts forever, and her resolve to enjoy the moment, taught me that we can be happy even when there is no reason to be. A matter of choice, she says. Her favourite line: Girl! O tla ba strong, lifted me up from the bottom of my darkest and deepest pits. Thank you to my husband, the shoulder I lean on, always ready with a handkerchief to wipe my tears away.

Thank you to the many elders (dead and alive) in my rural village of Pella in Rustenburg. These ordinary and simple men and women with no recognisable trades except their humanity and humility have taught me so much about life. Life itself was their teacher. These are the people who knew my parents and wanted the best for me. They prayed for me. They worried about me like I was their own. When people called me a Black child, they called me an African child and I understood what they meant. Many, if not all, of these elders are no more, but the lessons learnt from them are still valuable and help me deal with today’s issues. These elders had nothing material to give me, but they gave me the only thing they had: love. Most never attained a formal education, and learnt life lessons from their parents, grandparents and life itself. They, although there were the First, Second and Third Industrial Revolutions, did not worry about the industrial revolution. They lived a simple life and relied on nature (the soil and animals) for provision. The lessons I learnt from them, humble and less sophisticated as they are, prepared me to deal with some of the complicated issues that today’s life presents.

A BIG THANK YOU to my creator, my GOD. The reason for my existence. The one I live through and for. He pulled me out from the deepest and darkest hole, full of mud, weapons galore, self-doubt, self-blame, self-hate, shame and deadly animals that were ready to kill me. As it is said: Life is not measured by the number of breaths we take, but by the number of moments that take our breath away. He created those moments, those that took my breath away. He promised to continue creating these moments, and this book is one of them. Another big thank you goes to my ancestors. Yes! My ancestors. The Mogatusi, Molokwane, Radiokana, Kgosiemang, Lethuloe, Mekgwe, Ramadie and Lekabe. I am, because of you.

I am grateful for the online materials (mainly journals and reports) from institutions such as Harvard University – Schools of Law and Business; Pennsylvania State University – School of Law and Business; Ohio State University – School of Law; Oxford University – School of Business; American Bar Association; American Management Association; International Chamber of Commerce (ICC); World Bank; United Nations; African Union (ACCORD); United States Institute for Peace in collaboration with IREX and others.

Lastly, a big thank you to my editor, Lorna King. This project, my book – #Mediation – would not, had my editor not been there for me, become a reality. It is said in Setswana Motho ke motho ka batho ba bangwe, meaning, You are because of others. Author William Penn said many years ago: I expect to pass through life but once. If therefore, there be any kindness I can show, or any good thing I can do to a fellow being, let me do it now, and not defer or neglect it, as I shall not pass this way again. My editor showed me this kindness.

Foreword

There will be, for as long as the human race exists, conflicts and/or disputes between and amongst people. It is therefore important to understand and accept that the problems we have with ourselves, between and amongst us as human beings sharing this space (intra and inter) cannot disappear simply because we wish them away. Conflicts and/or disputes are part of us, and the sooner we understand that, the sooner we may look for creative ways of dealing with and hopefully resolving them. We will resolve some and fail to resolve others. The key is for us to do the best we can to deal with them. Resolving some or all does not mean new ones will not emerge. Conflicts and/or disputes are cycles, sometimes presenting the same problems (recurring) or totally new ones emerging. Conflicts and/or disputes are part of a human journey, with no end in sight.

In the past, people around the globe had their own ways of dealing with conflicts and disputes. Some, like the Africans, relied on their norms and values to deal with conflicts and disputes. Africans relied – although they did not use the words conciliation, mediation and arbitration – on conciliation, mediation and arbitration to deal with conflicts and disputes. They used different African words, but in English all meaning: conciliation, mediation and arbitration. Some nationalities around the globe use litigation (courts) to deal with their disputes.

The effects of colonialisation brought some changes as to how Africans dealt with their issues. How they started dealing with their issues after colonisation shifted from conciliation, mediation and arbitration towards litigation – the new way of dealing with disputes. This was a real pity as the simplest, cheapest, most dignified and fairest way of dealing with conflicts and/or disputes gave way for litigation. Harvard University – Schools of Law and Business; Oxford University – School of Business, and many other USA and European universities have mediation programmes. Harvard University, in particular, traced ADR back to Africa. It uses lessons learnt from some African icons such as the former South African President Ntate Nelson Mandela in its mediation programme. Most developed countries in the world are now leading on the use of ADR whereas Africa – where ADR originates – is lagging behind.

Many countries have woken up to the realisation that ADR processes are, compared to litigation, cheaper, less complex and quickly resolve disputes. The countries which took an intent decision to cut the use of courts and use ADR to deal with disputes have seen the reduction of caseloads in the courts, and most have, as a result, saved thousands and thousands in capital. A number of countries in the West have, with regard to some disputes (mainly civil) made mediation mandatory (compulsory). Some courts require disputants to submit proof in the form of a mediation certificate before they will deal with their disputes. In the case of marital disputes, many courts in Europe, North America and Asia are reluctant to deal with the case before mediation has been attempted to resolve the parties’ dispute.

The Labour Relations Act, 66 of 1995 as amended (the LRA), provides for compulsory (statutory or mandatory) ADR processes. Although there has been mediation outside the LRA here and there, the courts have not, until recently, required the parties to try mediation before approaching them for litigation. The South African High Court had in March 2020 amended Rule 41 to now require the parties to first try mediation before approaching the courts for litigation. This is highly welcome.

Mediation, when correctly applied and taken seriously (which is what #Mediation is about), produces sterling results, leaving both parties satisfied. There is evidence of it saving money, offering speedy justice (justice delayed is justice denied) and it is a less complicated way of dealing with disputes. As an African woman I lived most of my childhood life in a rural community, and experienced how conciliation and mediation helped prevent conflicts from becoming disputes and helped to resolve disputes. Marriages in my community were saved through conciliation/mediation.

Conciliation/mediation in my community cemented relationships and/or fixed broken relationships. Rebellious children in my community were, through these processes, guided and assisted. Murders in my community were, through conciliation, avoided.

As mentioned, many believe that ADR’s roots are in Africa, and it is sad that Africa is – when compared to other countries outside it – lagging behind. Of course the LRA has, since its enactment, been advocating alternative dispute resolution and leaving litigation only for the courts (Labour and Labour Appeal Courts). Also as said, mediation has been happening outside the LRA. In March 2020 the High Court amended its rules to now require parties to give mediation a chance, and it is hoped that mediation will be given a real consideration.

This book intends to start a movement on alternative dispute resolution, especially mediation. It is hoped, with this book, that there will be a resolve to do things differently, bringing back humanity, pride, dignity, helping prevent conflicts from becoming disputes, and resolving disputes. This can happen if mediation is put in the centre, leaving serious disputes such as criminal matters for the courts to litigate. It is hoped with this book that a conversation will emerge, and difficult and uncomfortable questions will be asked in a robust and respectable way.

#Mediation (my book) is about an engagement which is constructive, robust, honest, respectful and premised on human dignity. #Mediation is about thinking, rethinking, learning, unlearning and re-learning. It is about wanting to positively change lives (socio, political and economic). It is about doing the right thing. It is about using processes that are, when compared with litigation, less complex, cheaper and speedily resolve disputes. #Mediation is about putting an end to the waste of resources which year in and year out are poured into processes which are antagonistic, take too long to conclude, and do not amicably resolve disputes.

Enjoy reading, and contribute to humanity!

Chapter 1

Alternative Dispute Resolution (ADR) Process

The three well-known alternative dispute resolution processes are conciliation, mediation and arbitration. This book briefly deals with conciliation and arbitration and focuses on mediation. The understanding of these processes, their importance, and when and how they should be used is extremely important.

What is conciliation?

Conciliation is a process with the aim or purpose to defuse or prevent a conflict from becoming a dispute. It is ideally used where relationships are at stake, for example family, parent and child, couples (married or not), employer-employee, and many other relationships. It is about mending difficult relationships.

A third party in conciliation shows up (invited or uninvited), points to or at a violation (who or what is wrong) and directs how it should be cured. She does not sit on a fence watching people in conflict, but instead gets in between the conflicting parties and is prepared to get muddied. Her aim is to defuse or prevent a conflict from becoming a dispute. A conciliator – in the old African way – would be someone respected by the community/family, someone the community members feared (structural physic), and would be known to be a no-nonsense taker. A conciliator could be a chief’s appointee or anyone in position of authority, such as a teacher, school principal, pastor, etc.

A conciliator does not have to be physically strong in stature. Their power and strength could lie inside – not outside. However, she has to be principled, decisive, unafraid of making unpopular decisions, and be kind but firm. A situation a conciliator could intervene in could be volatile or life threatening. She must therefore be mentally prepared and have a strategy on how to defuse a seemingly volatile situation from exploding, or prevent it from becoming a dispute.

Conciliation in an African context meant more than preventing a conflict from becoming a dispute. It meant a third party’s preparedness to get into the mud and get muddied to the extent of facing personal harm. A conciliator got between the two parties (sometimes about to fight or actually fighting) knowing very well the risk to themselves. Her eye though was always set on the goal – to defuse a volatile situation from exploding, or to prevent a conflict from becoming a dispute. She would make those in a conflict aware of the risk they would face if they did not do what they were told to do. She would step up in a very dangerous situation, and defuse tension between the parties. Conciliation was, in essence, the restoration of pride. Conciliation, if it could be understood as it once was by ancient Africans – to mean preventing conflicts from becoming disputes – then many nations would be better nations today.

A conciliator – when conciliation is properly understood – plays an active role while the parties play a passive role. As mentioned, a conciliator shows up, determines where a violation is coming from (who is wrong), points at it or to it, and orders how it should be remedied or cured. For example, a parent who finds children (their children or someone else’s) arguing, would step in uninvited, correct the one in the wrong (violation) and make sure there is peace between them. The relationship and pride of the family would in this example be very important. The parent would know that by not addressing the argument (conflict), the situation could turn into something that could shame the family. The parent is the steward and shepherd of the family, and would not therefore – when seeing or hearing children in a bitter argument – sit on the fence, watching them arguing or fighting, and do nothing to prevent the volatile situation from exploding, or possibly prevent a small issue (conflict) from getting out of hand (becoming a dispute). She would know that by not intervening, harm – or worse, death – could come to one of the parties. A conciliator (parent or anyone expected to intervene) would, if she failed to defuse or prevent a potentially violent situation, in the olden days (African way) be shamed and discredited by the community.

A conciliator’s toughness does not necessarily mean physical toughness. It is mental toughness, which includes amongst others the ability to craftily, clearly plan and strategise, listen and communicate. A conciliator must be brave, which means not being afraid to point at a violation and direct how it should be cured or corrected. She must independently, having listened and understood what the problem is, direct how it should be resolved. That is what conciliation is all about.

What is mediation?

Wikipedia defines mediation as dynamic, structured, interactive process where a neutral third party assists disputing parties in resolving conflict through the use of specialised communication and negotiation techniques. All participants in mediation are encouraged to actively participate in the process. Some literature defines it as an alternative to having a dispute resolved in court. Joseph Grynbaum, the Principal Mediator at Mediation Resolution International and Engineer at Power Generation Consultants had this to say about mediation: An ounce of mediation is worth a pound of arbitration and a ton of litigation.

There are a number of mediation approaches such as facilitative, evaluative, transformative and narrative. A mediator may, depending on the nature of a dispute and the parties involved, apply an appropriate approach. The facilitative approach is a commonly used approach. Mediation is – based on the facilitative approach – a well-structured and facilitated conversation between the parties where techniques such as negotiation and communication are applied. The role of a mediator is to facilitate the parties’ conversation. The parties in mediation are – unlike in conciliation where a third party (conciliator) points at a violation and directs how it should be cured – active participants, and are responsible for the outcome or resolution of their dispute/s. The commonly used approach in mediation under the Labour Relations Act, 66 of 1995 as amended (the LRA) is evaluative.

The parties in mediation, unlike in conciliation, play a critical role. They make presentations during the mediation process, brainstorm together or separately, make proposals, counter-proposals, view proposals against their mandates (for example, in a dispute about employees’ terms and conditions of employment where a registered trade union represents its members and management represents business, the representatives might need time to check with their principals if proposals made could be accepted). The facilitative approach, although it could be applied to any dispute, is usually helpful in mutual interest disputes (for example, terms and conditions of employment), commercial disputes, medical disputes, and others. An evaluative approach is mainly used in rights disputes – disputes that arise from the law (ex lege), contract of employment (ex contractu) or collective agreement.

Mediation is usually on a without prejudice basis, but the parties may agree that it be on a with prejudice basis. The parties may agree that it be recorded. Mediation is about the soul and mind. It is about asking hard and uncomfortable questions in the most humane way. It is about understanding, with the intention to resolve issues/disputes, the other party’s point of view. It could, if properly understood and used, produce a fair, just, equitable and sustainable outcome with a practical action plan that could or should be easily implemented. Mediation, if committed to, takes the parties’ interests into account and deals with both the obvious and underlying interests.

What is arbitration?

Arbitration is a process wherein a third party (arbitrator) hears the parties’ evidence, evaluates and analyses relevant evidence to a dispute, and makes a decision based on merit. The evidence should be credible and address the issue at hand. It is, save for its lesser degree of formality, like a court process. Both parties present their respective cases to an arbitrator, who then sieves through the relevant evidence from the irrelevant, analyses that evidence, applies the law to it and makes a decision (an award or ruling).

Arbitration could be mandatory or private. Mandatory arbitration dealing with employment-related issues is dealt with in terms of the LRA, and private arbitration is dealt with in terms of the Arbitration Act, 42 of 1965 (the Act). Arbitration in terms of the LRA is between employee and employer, and arbitration in terms of the Act could be between any parties. An employee and employer may, despite the existence of the LRA, choose to have private arbitration in terms of the Act. It is important though to indicate that an employee who agrees to private arbitration, either due to duress or lack of understanding and appreciation of what private arbitration means, does not waive her right to deal with her dispute in terms of the LRA. This is emphasised in section 146 of the LRA, which reads as thus: The Arbitration Act, 1964 (Act 42 of 1965), does not apply to any arbitration under the auspices of the Commission. Reference to the Commission applies to a bargaining council. It needs to be mentioned, though, that an employee who agreed without prejudice to her dispute being dealt with in terms of the Act, would have to comply with her agreement. An agreement could be in terms of a contract of employment or could have been agreed on at the time of an alleged misconduct. The intention of the LRA is to protect a vulnerable employee. An employee (particularly a vulnerable employee) who has been coerced into agreeing to have her dispute dealt with in terms of the Act would not have waived her right to have her dispute dealt with in terms of the LRA.

Arbitration, although it is like a court process, is different in the sense that an arbitrator does not have to follow the strict rules and procedures followed in courts of law. Section 138 of the LRA deals with general provisions for arbitration proceedings. An arbitration could in terms of section 138(1) of the LRA deal with arbitration in the manner that she deems it fit, fair, equitable and with minimum legalities. Arbitration in terms of the Act is also less technical and the parties may agree on its terms (terms of reference).

Summary of differences between conciliation, mediation and arbitration.

Chapter 2

Conflict Versus Dispute

Such has been said about conflicts and disputes without discussing what they are. This chapter seeks to discuss what they are and their differences.

What is a conflict?

A conflict is, in plain English, different views or opinions (how things are seen and/or interpreted) between and/or amongst people. It would be between if there are two people or parties, and it would be amongst if there are more than two people or parties. A conflict could be within a person (intra). A person could be heard saying I have two hearts. The truth is, this person has one heart but there appears within her to be two people or two hearts. She has two views, each contradicting the other. This person could be heard saying, My one heart tells me to do this and my other heart tells me not to do it.

Conflict is normal, natural and necessary. Dealing with or managing conflicts is about searching for deeper roots that often feed and sustain them. At the same time conflict could be as the result of simple and complicated values such as respect, justice, power, equality, honesty, knowledge, empathy, integrity, and so on. People could learn a lot from it. The different views/opinions which a person (intra) has, or two or more people have (inter), could help unearth serious problems which would not, had it not been for the different views/opinions, be known and dealt with. This kind of conflict is positive as it leads to the discovery of problems or issues not known and helps deal with them before they become real issues.

Going back to the example of a person with two hearts – conflicting views – the two hearts could help avoid a future harmful situation. This person should, in order to have an agreement with herself (the two hearts) have to reconcile the two views and come up with a resolution or one conclusion. For example, the one heart could be saying I want to marry, and the other heart could be saying I do not want to marry. These opposing views could lead to a decision being made – either marrying or not marrying – which she may later regret.

The situation with two or more people’s conflicting views/opinions could, if not addressed and dealt with (resolved), lead to a dispute. Like with anything that happens in life, a conflict starts with a thought and a thought becomes a word and a word becomes an action. A conflict and/or dispute often starts with a thought. A poignant quotation from Dhammapada about a thought goes: The thought manifests the word. The word manifests the deed. The deed develops into a habit and habit hardens into character. So watch the thought and its ways with care and let it spring from love born out of compassion for all human beings. As the shadow follows the body, as we think, so we become.

Thoughts are powerful. Everything, bad or good, starts with a thought. What leads to a person saying I have two hearts starts with a thought. What leads to conflicting views starts with a thought. Words, views and opinions are expressions of thoughts. With a thought, people can love. With a thought, people can hate. With a thought, people can kill. With a thought, people can protect. All depends on a thought (build or break, harm or protect, love or hate, create or destroy, etc.). Inventions (the First, Second, Third and Fourth Industrial Revolutions) started with a thought. A thought manifests as a word and a word manifests as a deed.

What is important to mention about a conflict is that it is institutionalised and is part of human beings. Wishing a life without conflicts is an ideal. It is part of life. What is needed is the management of conflicts and their prevention from becoming disputes. Conflicts cannot be wished away. When one conflict is managed and prevented from becoming a dispute, another one emerges. Managers/leaders, parents and so on, should be empowered to manage conflicts and not leave them unattended and/or unmanaged.

People deal with conflicts differently. Some confront them (fight phenomenon) and some avoid them (flight phenomenon). Dealing or not dealing with conflicts is to some people a catch-22 situation – damned if they deal with them, damned if they do not deal with them. Power imbalance is another factor in the handling of conflicts. A minor, for example, may find it difficult to deal with an abusive parent. A young inexperienced employee may find it difficult to deal with an abusive supervisor/manager. An unmanaged conflict triggers a dispute.

It is important to understand that a conflict on its own is not a bad thing. How it is handled could determine whether there is a positive or negative outcome. It could, when dealt with effectively, produce positive results. It could, when not dealt with effectively, escalate quickly and lead to physical and/or emotional violence (harm). Conflict management is the preservation of peace between two people/parties (inter) or a person (intra). Bodine, Crawford & Schrumpf, 1994, describe