“DISPUTES between businesses or people with power tend to lead to litigation. Resolving conflicts in business is both time-consuming and emotionally demanding. King 3, the new directive on corporate governance in SA, emphasises that alternative dispute resolution (ADR) is often a better alternative.
In ancient times, personal conflicts usually resulted in interpersonal violence, community conflict brought about battles, and national conflict gave birth to wars. But in these civilised times, are things any different? Have we learned to nip conflict in the bud when it threatens to emerge in a relationship, business, community or nation? The truth is that humankind is as conflict ridden as ever”.
These passages are extracts from an interesting article by Merle Friedman & Michael Judin in Business Day on 9 June 2010 Another way to resolve business conflict.
In particular the article is important because it stresses the need for the conflicting parties to receive some form of preparation by a professional psychologist or trained health professional to ease the process rate of ADR.
There is little that is new in the Business Day article you referred to, but these kinds of reminders do seem necessary from time to time. As a member of the steering committee, you of course know that IMSSA, the Independent Mediation Service of South Africa, was formed in the mid eighties already. Although it started in the field of labour its services spread into other fields and it can be said that what started in the field of labour disputes played a significant part in bringing about changes in the wider society that culminated in the birth of the new South Africa. Anybody interested in mediation instead of litigation should read the judgment of Judge Albie Sachs in Port Elizabeth Municipality v Various Occupiers 2005 (1) SA 217 (CC); 2004 (12) BCLR 1268 (CC). The learned judge says “Wherever possible, respectful face-to-face engagement or mediation, through a third party should replace arms-length combat by intransigent opponents … ”
And I would especially recommend the judgment of Brassey AJ in Brownlee v Brownlee, in which he says “In so many cases … the best time to mediate is before the litigation begins. It is not a sign of weakness to suggest it. It is the hallmark of commomsense. Mediation is a perfectly proper adjunct to litigation. The skills are now well developed. The results are astonishingly good. Try it more often.”
You can’t put it much better than that!