Conflict is inevitable, but combat is optional.

If I were to sum up the effects of the inaugural #SA1 (SABWiL AFSA mediation and arbitration training) in one word, I would say “empowerment”. I say this because the #SA1 training has broadened my mind greatly, and I feel informed and empowered as a result thereof. The value of the preliminary material that was furnished in preparation for the training was truly effective because it offered motivation and insight for the training, by introducing me to the topic, as well as encouraging me towards the concept of thinking about the content of the training beforehand.

Our mediation training began with Advocate Samantha Martin who took us through Rule 41A of the Uniform Rules of Court and the definition of mediation, the importance of mediation, characteristics of mediation, the rules that govern mediation, what makes a good mediator as well as the process of mediation. She also took us on a guided tour of the mediation facilities at the Arbitration Foundation of Southern Africa (AFSA). The training was such an eye opener for me, to an extent that I feel compelled to share the knowledge that I learned, as well as my overall experience in detail, in this humble written offering.

Mediation is a voluntary process between parties to a dispute in which an impartial and independent mediator, assists the parties by:

• facilitating the resolution of the dispute between them;
• identifying and limiting the issues in dispute as well as exploring potential areas where an amicable compromise may be reached through negotiations;
• facilitating the proceedings and ensuring that communication breakdown between the parties is prevented and
• creating options that will assist in resolving the dispute.

Every new action or application in South African High Courts, must include a notice in which the instituting party either agrees to a referral of the dispute to mediation or opposes such a referral. The opposing party is also required to file a notice in which it indicates whether it agrees or opposes the referral of the dispute to mediation. If the referral to mediation is opposed by either party, reasons must be given. When parties have agreed to mediation, the impact thereof is that the time limits for the filing of further affidavits or pleadings will be suspended.

The parties will be required to comply with the various requirements of mediation such as entering into an agreement to mediate, filing a minute to record the decision to mediate, as well as filing a joint minute that indicates whether a settlement was reached. The mediation must be concluded in thirty days unless extended by a judge. If any issue or issues remain unresolved after the mediation process, the parties may proceed to litigation.

What I found most interesting about mediation is the fact that it is a very essential tool when to comes to life in general. This is because it provides the key life skills that are useful in all areas of our lives, not just in our legal careers. Mediation training teaches about the dynamics of human behaviour and provides the fundamental set of skills that are necessary when dealing with inevitable conflict.

These skills create healthy ways that prevent conflict from escalating further, and thus assists with the preservation of relationships. Another essential element of mediation is that it assists people in making their own decisions when it comes to resolving conflict. This keeps the communication channel between the parties open. This is the ultimate key that leads to the salvation of relationships that could have been damaged beyond repair without the intervention of mediation.

Mediation is often effective when it comes to reducing tensions. It therefore makes sense for the concerned parties to begin with it as a point of departure. This should happen before parties resort to arbitration or litigation since it is a relatively fast and inexpensive means of resolving disputes. In my view, mediation also supports the ongoing access to justice efforts by shifting the justice system to be more client-centred and collaborative.

This line of thinking is supported by the fact that as of 9 March 2020, parties to a dispute are required to consider mediation for every new matter instituted in a High Court of South Africa. Non-compliance with this new rule, could result in a party receiving an “irregular step” notice which could significantly delay the finalisation of a matter, and lead to unnecessary costs. However, recent case law has shown that this rule will take quite some time to be implemented fully in our Courts as the Courts themselves still overlook this rule. In the recent case of M N v S N (10540/16) [2020] ZAWCHC 157 , the Court reiterated that the Rules are there for the Court and not the Court for the Rules and was not prepared to uphold the objection of non-compliance with Rule 41A.

Advocate Christopher Gibson took us through the concept, process and the rules which govern arbitration. The types of disputes that cannot be referred to arbitration, advantages, and disadvantages of arbitration, as well as how arbitration awards are enforced was topical. He presented us with a scenario, for which we had to write heads of arguments for the applicant who sought a review and setting aside of an arbitration award. This was homework that we also had to present in class during training the following week. It was a truly amazing experience and learning how to draft heads of arguments as well as how to present yourself before an arbitrator from seasoned professionals was a welcome and priceless opportunity for me.

Arbitration is governed by the Arbitration Act 42 of 1965 in South Africa or the International Arbitration Act, 15B of 2017 . However, for the Act to be enforceable, the parties must record their agreement in writing to arbitrate any existing dispute or any future dispute relating to a matter specified in their agreement. Where the agreement in question is a sale agreement, the parties may record the above by including an arbitration clause in their contract of sale. What stood out the most for me with regards to arbitration is its advantages when it is compared with litigation.

Arbitration is preferred over courtroom proceedings because :

• It is private, often quicker and delays can be avoided.
• The adjudication itself is flexible and the parties may agree to the mechanism to resolve the dispute, i.e., witnesses that are overseas may be questioned virtually or over video, or certain evidence may be admitted without the need to call witnesses.
• The dispute often requires that the adjudicator has a certain set of skills. For example, a medical dispute is best adjudicated by a person who has knowledge of the medical field as well as a medical degree. Parties may therefore refer a dispute to an expert in the concerned specific field for determination.
• There may be an appeal procedure, but the outcome is binding on the parties and is enforceable.

The disadvantages of arbitration include:

• Costs – This is often outweighed by the fact that the dispute is resolved more quickly.
• Privacy – Privacy is often considered to be one of the advantages of arbitration. However, the privacy of arbitration proceedings can be a disadvantage in circumstances where the reprehensible conduct of one of the parties is protected from public scrutiny. In addition, privacy can result in a lack of transparency, which may be disadvantageous to one of the parties, particularly when there is no appeal against the award.
• Conflict of interest – Arbitrators must be impartial and independent of the parties on appointment and must remain so until the final award has been rendered. However, arbitrators are often appointed from the ranks of practising and retired legal practitioners and conflicts of interest can arise at any point in practice. Challenges based on alleged conflicts of interest can lead to the delay and disruption of arbitration proceedings.

In instances where the impartiality of the arbitrator is questionable, the aggrieved may lodge an application seeking an order to review and for the arbitration award to be set aside. This would be based on the notion that the arbitration proceedings were carried out in a substantially irregular way, as described by section 33 (1) (b) of the Arbitration Act 42 of 1965. In Abrahams and Another v RK Komputer SDN BHD and Others 2009 (4) SA 201 (C) , Gauntlett AJ (as he then was) points out that, according to Ngcobo AJ’s (as he then was) decision in Sidumo v Rustenburg Platinum Mines Ltd & Others [2007] 12 BLLR 1097 (CC) , the review process will necessarily compel the reviewing court to scrutinize the reasons presented for the award.

It was also stated that, when conducting this exercise, the reviewing court must keep in mind that it is examining the reasons not to determine whether the commissioner’s (or arbitrator’s) conclusion is correct, but to determine whether the commissioner (or arbitrator) has committed a gross irregularity in the conduct of the proceedings.

Currently, a large gap exists between people who need access to legal services and those who can afford legal services. Many of the public services that are available, such as legal aid, pro-bono lawyers and law school clinics, only have the resources to serve a very small portion of the needs of individuals with legal problems. Additionally, the income restrictions are so low that often only the very poor are eligible for such services. As a result, many people represent themselves when resolving legal problems, often with little success.

In conclusion, should I someday have the privilege to guide the course of dispute in my legal career, I hope to use this newfound knowledge not only to resolve disputes but to also shape our legal landscape by encouraging society and more especially legal practitioners, to utilise alternative dispute resolutions to make justice accessible to all.

Penned by

President Cleopatra Mahoa

Third SABWiL President , 13 January 2022

Authorities:

Legislation
Arbitration Act No.42 of 1965 
International Arbitration Act No. 15B of 2017

Case Law
Abrahams and Another v RK Komputer SDN BHD and Others 2009 (4) SA 201 (C)
M N v S N (10540/16) [2020] ZAWCHC 157
Sidumo v Rustenburg Platinum Mines Ltd & Others [2007] 12 BLLR 1097 (CC)

Additional sources
Mediation Rule 41A of the High Court
RULES BOARD FOR COURTS OF LAW ACT, 1985 (ACT NO. 107 OF 1985)
Arbitration Act, 1965 – Government Website