In 1981 the Ford Foundation generously donated funds to enable a mediation service to be established in South Africa.  Thanks mainly to the efforts and drive of the late Loet Douws Dekker steps were taken to arrange for interested participants to become involved in what was at that stage a novel concept in South Africa. But with the knowledge and understanding provided by Jim Power from the USA and then Andy Kerr from the United Kingdom and a privileged group of persons, including President Cyril Ramaphosa, to be persuaded that there was a viable alternative to power-play.

What follows is the contents of a brochure issued by IMSSA in 1983 after it had been registered by the late Raymond Tucker, attorney, as a legal non-profit entity.  As is well known eventually after 1996 the CCMA was created and in due course took over the functions provided by IMSSA.  This has been well documented and we all know the important role played by Charles Nupen and his wife Dren Nupen.

Fortunately there are photographs showing some of the role-players in the days before the CCMA was created.

INDEPENDENT MEDIATION SERVICES OF SOUTH AFRICA

MEMBERS OF THE STEERING COMMITTEE

MR THEO HEFFER (CHAIRMAN)
GRINAKER HOLDINGS LTD.

MR H BOTHA
INSTITUTE FOR INDUSTRIAL RELATIONS

MR PHIROSHAW CAMAY
COUNCIL OF UNIONS OF SA

(Mr. Camay to confirm nature of future participation).

ADV ARTHUR CHASKALSON SC
LEGAL RESOURCES CENTRE

MR LOET DOUWES DEKKER (CONVENER)
UNIVERSITY OF THE WITWATERSRAND

MR FRED FERREIRA
FORD MOTOR COMPANY OF SA (PTY) LTD.

MR GRAHAM GILES
LEGAL PRACTITIONER

PROF LOUIS KAMFER
UNIVERSITY OF PORT ELIZABETH

ADV ANDRE LAMPRECHT
BARLOW RAND LTD.

PROF. J. LEATT
GRADUATE SCHOOL OF BUSINESS, U.C.T.

MS LESLEY LIDDELL
WESTERN PROVINCE COUNCIL OF CHURCHES

MR WELLS NTULI
ANGLOVAAL LTD.

PROF JOHAN PIRON
UNIVERSITY OF SOUTH AFRICA

ADV PAUL PRETORIUS (ALT)
LEGAL RESOURCES CENTRE

PROF LAWRENCE SCHLEMMER
UNIVERSITY OF NATAL

PROF SM (BLACKIE) SWART
UNIVERSITY OF STELLENBOSCH

PROF ROUX VAN DER MERWE (ALT)
UNIVERSITY OF PORT ELIZABETH

MR. IKE VAN DER WATT
SA BOILERMAKERS’ SOCIETY

MS LORETTA VAN SCHALKWYK (ALT)
UNIVERSITY OF NATAL

AN INDEPENDENT MEDIATION SERVICE FOR SOUTH AFRICA

1. Introduction

Collective bargaining is regarded as an essential institution in democratic societies which subscribe to a private enterprise-type market economy. In most cases the process of collective bargaining leads to settlement of disputes and a compromise being reached between the conflicting rights and interests of employers and unions. But sometimes it does not, and deadlock, in which neither party will give way, results.
What alternatives are then open to the parties? The withholding of labour on the part of the workers or lock-out on the side of the employer are choices.

The parties may also consider arbitration and hand over to a third party to make decisions for them. Or there is another alternative, mediation. By choosing mediation neither party relinquishes its right to make its own decisions, while the mediator seeks to re-open and maintain the flow of negotiation towards reaching settlement.
In making such a choice, the parties accept that notwithstanding the right and the opportunity to exercise the process of collective bargaining, they will not reconcile their differences without help. They choose mediation for several reasons –

  • it is a resource in the process of and not an alternative to, collective bargaining.
  • it is a process closely aligned to the fundamental principles of a democratic society.
  • it is a voluntary service, i.e., there is freedom to choose the process of mediation.
  • the principle of impartiality is enshrined in the aims and objectives of the agency offering a mediation service while its use does not deny the right to strike or to a lock-out.
  • the resource provides an alternative to the more costly actions of strike, lock-out, arbitration or litigation.
  • it leaves the parties with the unfettered right to make their own decisions. That is why irrespective of the stage of development reached in industrial relations systems, it is appropriate to provide mediation services.
  •  it is recognised in countries which have reached an advanced stage of evolution in industrial relations such as the United States, the United Kingdom and several European countries. The need for a mediation service is even more evident in countries like our own where the balance of power between worker and employer organisations is far from being in equilibrium.

Mediation does not guarantee that there will be no strike or legal action, but its timely intervention may prevent either by both restoring the direction of the parties’ relationship and maintaining its flexibility for the future. Last year, 1982, there were 394 strikes involving 141 000 workers. How many could have been prevented by mediation cannot be known but it is a relatively inexpensive procedure that, if it had been resorted to, might possibly have saved workers and employers millions of rand in lost pay-packets and production-time. Furthermore, if the parties negotiate their own settlement with the help of a mediator, the potential for maintaining a long-term mutually satisfactory relationship is considerably enhanced.

2. MEDIATION IN SOUTH AFRICA

2.1 Background to Establishing the Service

The inexperience of management and unions, following acceptance of the major recommendations of the Wiehahn Commission, led to unnecessary confrontation and hostility. Resistance to change by management meeting head-on with the flexing of the muscles of new unions appeared to require a resource to facilitate relationship-building. This brought together a number of leading trade unionists and industrial relations managers in 1981 to discuss the feasibility of a mediation service in this country.
In July and September 1981, two workshops were attended by prominent leaders from emerging and established unions, industrial relations specialists, and representatives from resource organisations. All representatives attended in their personal capacity.
A number of concerns were expressed in regard to certain developmental aspects of industrial relations in South Africa.
Emphasis was however placed on the principle that mediation is part of collective bargaining and would evolve in terms of that process. The parties all agreed that the government was not the appropriate agency to provide such a facility and that an independent mediation service had potential.
A joint Steering Committee of labour and management was set up to investigate the possibility of inviting experts from the United States of America and the United Kingdom to come to South Africa. The objective was that they should address seminars on the operation and purpose of mediation and run workshops for potential mediators.
In June 1982, through the assistance of the Federal Mediation and Conciliation Services (USA), Mr JM Power, Director of Training and Development, was invited to South Africa for two-and-a-half weeks and addressed:

  • two joint meetings of trade union and employers’ associations – 62 participants.
  • five employers’ associations – 219 participants.
  • six union groupings – 104 participants.
  • labour lawyers on two occasions – 17 participants.

Fifteen people interested in the dynamics of mediation attended a five-day case study workshop. Mr. Power’s talk was circulated to some 750 companies and institutions.
By August 1982, the considerable interest and support for the idea of establishing a private mediation service resulted in the Steering Committee being augmented by representatives of five academic institutes involved in industrial relations.
Through the assistance of the Advisory Conciliation and Arbitration Services (UK), Mr A Kerr, the retired Chief Conciliator for that body, came to South Africa for a period of three weeks in October 1982.

Mr Kerr addressed:-

  • three joint meetings of trade unionists and employers’ associations – 76 participants.
  • four employers’ associations – 218 participants.
  • five trade union groupings – 84 participants.
  • our individual companies – 17 participants.

Twelve persons attended a three-day case study workshop on the mediation process. A special one-day workshop on mediation was attended by delegates from 20 Industrial Councils. Mr. Kerr also prepared a proposal document for the consideration of the Steering Committee on the requirements of a mediation service. Mr. Kerr’s talk and a cross-section of the questions raised were circulated to companies and institutions.

2.2 IMSSA is instituted

By 1983, the interest in and potential value of establishing an independent mediation service in South Africa had been significantly substantiated.
In January of that year, the Steering Committee agreed to establish such a private service in terms of the following principles:

  • a mediation service must be independent and impartial.
  • mediation intervention is dependent upon the voluntary and mutual agreement of both parties.
  • mediation is a resource assisting the process of collective bargaining.
  • mediation recognises the principle of self-governance where the regulation of the relationship is left in the hand of management and trade unions.

In a press statement it was announced that the Committee’s investigations had highlighted the existence of a need for a private independent mediation service and that agreement had been reached to establish such a service for South Africa on a non-profit basis. The service, named the Independent Mediation Service of South Africa (IMSSA), would have a full-time Secretariat initially guided by the Steering Committee and in due course by a permanent Board of Trustees made up of leading academics, trade unionists and industrial relations practitioners. A Panel of Mediators would be formed by inviting experienced persons to offer their services on a part-time basis – these services to be made available through the Secretariat. The latter would as a longer-term objective undertake the selection and training of full-time mediators for the Service.
By September 1983, IMSSA had been involved in fifteen successful mediations. The companies concerned are from manufacturing and service sectors and the unions from those both established and emergent.
For the future, the advantages of a mediation service will become increasingly apparent. A significant number of some of the 300 recognition agreements entered into during the post-Wiehahn period by implication or in a specific clause refer to mediation. Where the parties use mediation, it is often found that the essential relationship-building dimension of union and management interaction is enhanced. This is important to the respective goals of the parties, viz. productivity for management and increasing participation in decision-making for labour.
Formal mediatory intervention will not always be necessary or requested: the mediator may be informally consulted by the parties or his mere availability will be sufficient for the parties to find their own negotiating range. Now and for the future, maintaining the flow of negotiation between the parties is the chief objective of the mediation service.

3. THE INDEPENDENT MEDIATION SERVICE OF SOUTH AFRICA – HOW IT WORKS

3 .1 Trustees

IMSSA activities will be guided by a Board of Trustees consisting of academics and management and trade union representatives. The Board has been established and the initial members have been drawn from the Steering Committee. Since joint labour-management policy guidance is essential, the Board of Trustees will be augmented by additional representatives from both parties from time to time. The Trustees at present are Mr T Heffer, Mr AJ van der Watt, Adv A Lamprecht and Mr L Douwes Dekker. The Service will be registered in terms of the Fund-Raising Act.

3.2 Services

IMSSA will initially render a service through a Panel of part-time mediators. The four-year Budget also provides for the selection, training and development of full-time mediators who will in addition be available for advice on technical matters in industrial relations.
By August 1983, eight persons had agreed to their names being placed on IMSSA’s panel of part- time mediators. These are: Prof SM Swart, Prof Roux van der Merwe, Adv P Pretorius, Prof J Piron, Prof P Le Roux, Prof J Leatt, Mr G Giles and Mr H Botha. IMSSA will provide research and information as well as administrative back-up to mediators and be responsible for promotion of the concept of mediation.

3.3 Procedure

When IMSSA receives a request from both parties, a mediator, or, in certain circumstances, a list of names from which to choose a mediator, will be provided. The fee for the service of the mediator ranges from R250 to R500 per day and will be subsidised, by arrangement, up to R200 per day. The parties bear the costs of travel and subsistence in terms of ratios agreed upon between themselves.

3.4 Financing the service

There are many services the need for which is not in doubt – for example) care of the aged or of those suffering from occupational diseases. But large question marks usually hang over how such services are to be adequately funded.
For IMSSA the problem is compounded by two factors:

  • the first is that unlike the care of the aged and other welfare projects) the independent and private nature of the Service precludes financial support from Government sources.
  • The second problem arises from the fact that the Service specifically aims to make its mediators available to all who wish to use them) irrespective of their financial situations.

In simple terms, that means that fees charged the parties can never cover the cost of running the Service. To continue operating) the shortfall must be made up through private donations.
IMSSA has been funded by the Ford Foundation of America over the last three years and the Foundation has agreed to continue its support for a further two years. Though most generous) this grant will cover only half the Budget requirements to appoint a Director, employ research and administrative staff and subvent the cost of mediation.
The Steering Committee believes the value and relevance of a mediation service to industrial relations/collective bargaining is such that local funding should be sought and can be found. It will therefore aim to promote the concept of mediation on as wide a base as possible, not only to develop industrial relations in South Africa, but also in order to achieve this objective.

IMSSA will not be attached to any institution or university. In the initial period before the appointment of a full-time Director, parties interested in mediation who have not already been contacted by IMSSA are cordially invited to obtain information from Mrs June van Lingen PO Box 31170, Braamfontein 2017 Telephone: (011) 643-6641.