Labour Court Judges may direct “a mediation meeting before a Judge in chambers” [see 126.96.36.199 of the Consolidated Practice Directive 2010 dated 15/09/2010]. How will this work in practice, and is it intended that the Judge who chairs the ‘mediation meeting’ will not preside in the same matter if the dispute remains unresolved ?
It is suggested that it would be most undesirable for the same Judge to chair the meeting and then preside in the trial. One of the key requirements of mediation is for the parties to disclose confidential information to the mediator which cannot be used against that party if the matter proceeds to trial. Parties cannot be expected to be open and frank during a “mediation meeting” unless they are assured that the Judge will not take any further part in the matter and will not disclose anything told to that Judge in confidence.
View or download the Labour Courts – Consolidated Practice Directive 2010
Important issues are at stake and the intention is to share some thoughts on the subject of mediation, prompted by an important working paper produced recently by Clive Thompson “Dispute prevention and resolution in public services labour relations: Good policy and practice” as part of the Sectoral Activities Programme of the International Labour Office (Geneva 2010). Useful websites are also provided in the working paper: www.mediate.com and National Alternative Dispute Resolution Advisory Council in Australia:
Here are some extracts from the working paper with footnotes omitted:
“Mediation is a deadlock-addressing process where the parties to a dispute, either voluntarily or under legal obligation, use the services of an independent third person to clarify issues, develop and consider settlement options, or steer them towards an agreement of their own making. The mediator has no determinative role in regard to the outcome of the dispute but may offer process guidance and, on occasion and by consent, content suggestions to assist the parties. Process, not substance, is the mediator‘s responsibility. If the parties remain unpersuaded, the impasse persists”. [p 54].
Shades of mediation – facilitate, evaluate or transform
At page 55 Clive Thompson refers to “Shades of mediation” and quotes the following from Baruch Bush, R. and Folger, J. The promise of mediation: Responding to conflict through empowerment and recognition (Jossey-Bass Publishers, 1994
In a facilitative mediation, the mediator works with a light hand. The role is firmly process-orientated, and substantive suggestions to the parties on how to sort out their differences would not be volunteered. The mediator structures a process to assist the parties reach a mutually agreeable resolution. So the mediator may ask questions, test (perhaps in private session) the parties’ respective points of view and try to draw out the parties’ underlying interests so that alternative solutions become evident.
In an evaluative mediation, the mediator plays a more active role, though usually in a calibrated way. The mediator may begin proceedings in a facilitative mode but, if the impasse remains, switch to a more interrogating stance, encouraging the parties to reality-test their respective positions, perhaps by putting before them challenging counter-evidence. If a breakthrough still eludes the parties, the mediator may propose and even actively recommend particular solutions. Even here, though, the parties are not bound to accept them.
Transformative mediation turns on extensive recognition by each party of the other’s needs, interests, values and points of view, coupled with mutual empowerment. The object is a transformation of the underlying relationships between the parties in consequence of the mediation process. Transformative mediators meet with parties together, since only they can empower and effect the necessary change. In transformative mediation, the parties structure both the process and the outcome of mediation, with the mediator as facilitator”.
#1 One is reminded of an old story concerning a mediator and a “place-holder”. The story has been adapted for our times.
Three children inherit 17 head of cattle from their father. Their deceased father’s instructions are problematic: the eldest child is to receive ½ the cattle, the second child ⅓ of the cattle, and the third child one-ninth of the cattle. But dividing 17 head of cattle in this way produces 8.5, 5.67 and 1.89 animals, respectively, for the three children. So they argued and argued about how to fix this problem and finally asked a mediator to assist them.
The mediator offered an old bull to the children. Now they had 18 cattle and were able to divide them according to their father’s wishes: 9, 6, and 2, respectively, for a total of 17. The dispute was resolved peacefully and they gave the old bull back to the mediator.
For further information on the original “camel story”, first told to me by Charles Nupen, go to http://www.huffingtonpost.com/john-prendergast/from-camp-david-to-darfur_b_365459.html or http://trickofmind.com/2009/09/17-camels.html
#2 A true story.
In an industrial area the employees at one factory discovered, through their trade union, that whereas all the employees at all the other factories enjoyed 13 public holidays, they were only allowed 12 public holidays. After threatening to strike (lawfully) over their demand for an additional public holiday, the employer and the trade union jointly engaged the services of a mediator from the former IMSSA (Independent Mediation Service of South Africa). The employer was adamant that the factory could not close for another day. The mediated solution: employees did not have to work on their birthdays and would receive full pay for that day. Both parties were satisfied with this outcome and a potentially damaging “power-play” was averted.