Mediate before adjudication: Labour Court directive?

Labour Court Judges may direct “a mediation meeting before a Judge in chambers” [see 8.2.1.3 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:

Definition

“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

“Facilitative mediation

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.

Evaluative mediation

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

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”.

Successful mediations

#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.

7 Comments

Darcy Du Toit on November 24, 2010 at 9:13 pm

The excerpt from Clive Thompson (above) and the “bull story” above)indicate the creative nature of mediation. It also suggests that, in the context of the Labour Court Directive, mediation should not be assumed to mean parties baring their souls and disclosing secret purposes which might be at odds with their pleadings. Perhaps its contemplates no more than judges being encouraged to offer parties a “way out” of their dispute. This can be done without sacrificing objectivity.The judge is merely trying to clarify what (if anything) is REALLY in dispute.

Graham Giles on November 24, 2010 at 10:58 pm

Judges have always encouraged the representatives to meet in “chambers” to discuss what is really in dispute and how to shorten the proceedings.
It seems the directive concerning a “mediation meeting” is a departure and presupposes a more “formal” type of procedure.
Judges need to be conscious of the dangers of pre-trial discussions when they may become aware of facts that are not actually presented in court.
It is necessary to warn of the dangers and perhaps it would be better for Judges to allow the CCMA to do the mediating as commissioners are trained to do so and there are special skills involved.

Graham Giles on November 25, 2010 at 8:32 am

Comment received from Chris Albertyn, Canada
“With great respect, I disagree fundamentally with the suggestion that the same judge cannot mediate and then adjudicate. It is the conventional practice over here for arbitrators in labour disputes to med-arb their cases; in almost all instances. The arbitrator acts as mediator and then hears the case. There is no objection to this process. The issues in the mediation and arbitration are different. The first is focused on where the parties would like to end up (with some explanation of what occurred – not much different from what will be heard later in evidence). The trial is focused on what happened. The two can work together quite consistently.

Graham Giles on November 25, 2010 at 10:43 am

Thanks Chris for your valuable insight and contribution to the debate and here are some further thoughts.
Judges are expected to adjudicate (the legal process of resolving a dispute) unlike CCMA commissioners who conciliate/mediate and conduct arbitrations (dispute resolution involving a neutral third party whose decision is binding).
In South Africa all disputes must be conciliated/mediated before the parties are allowed to proceed to the next stage.
There is a distinction between disputes of “rights” and “interests”.
In principle “interest” disputes, such as wages and terms of employment, are resolved by the parties themselves after the compulsory process of conciliation/mediation by the CCMA or Bargaining Council fails. The parties are allowed to resolve those disputes through lawful protected “powerplay” after following the statutory procedures.
Disputes over “rights” are either arbitrated (by CCMA) or adjudicated (by Labour Court) depending on the nature of the dispute. Uncomplicated issues are usually arbitrated and there is no right of appeal only a right of review to the Labour Court.
In 2002 “con/med-arb” was introduced and seems to be having a beneficial effect but the parties may request another arbitrator to arbitrate if prior con/med fails and confidential information was disclosed.
Serious issues, such as discrimination and alleged automatically unfair dismissals, must go the Labour Court for adjudication and there is a right of appeal to the Labour Appeal Court.
Prior to adjudication by the Labour Court Judge the parties are required to define the issues by means of pleadings, discover/produce all relevant documents and hold pre-trial meetings. At that stage the issues should be crisp and clear and ready for trial.
The parties reasonably expect the Judge to proceed with the trial, hear the evidence and deliver a judgment. They are engaged in an expensive exercise!
There must be a danger that Judges may be tempted to delay the proceedings by directing that there be a “mediation meeting”. This should only be necessary in exceptional cases, bearing in mind all the processes that should already have taken place.
Mediation serves a good purpose in “interest” disputes where there is always some room for compromise. It is conceded that mediation can be useful right up to the last minute before an arbitrator.
The same does not usually apply to “rights” disputes that come before the Judge for adjudication.
This is not to say that there should not be room for balancing the interests of the parties even in a “rights” dispute. See earlier blogs where it has been argued that even fairly dismissed employees should not forfeit their right to reasonable notice pay and severance benefits unless the reason for termination was their own gross/serious misconduct.

Graham Giles on November 27, 2010 at 6:39 am

Comment received from Chris Albertyn.
“Very good reply to my comment, and convincing.”

Many thanks Chris, much appreciated.

Graham Giles on January 1, 2011 at 6:21 pm

I have just found a very interesting address that Arnold Zack gave a few years ago “The use of Mediation/Conciliation by Labour Courts” given in 2005 and this is a quote therefrom with footnotes omitted. The entire article should be studied as it provides valuable information on the subject.

Often things are said in confidence which at least one of the disputants would not be willing to admit if it were to be heard in court. That is particularly true if the third party is also the person charged with making the final decision on matters of credibility. Thus, if an employee discharged for theft were to deny it on the record but to admit that theft to a conciliator with permission to resign in an effort to resolve the dispute, the admission to a conciliator would be confidential. Conciliators are generally given immunity from testimony for that very reason of encouraging disputants to speak freely, relying on their confidentiality. However, if the conciliator is the same judge who might be called upon to make credibility finding when the employee at the trial denies theft, it would deter the admission and thus impose a chilling impact on the freedom of discussion which is so essential for effective conciliation. Judges obviously seek to rule on the basis of the most accurate information and facts, and an admission of theft in the conciliation, if learned by the judge as conciliator, would be hard to ignore when the judge became the decision maker. Judges, even those involved in encouraging the parties to early settlement prior to initiating their trials, are usually careful not to place themselves in a position where they would receive confidential information from one side which might impact on their objectivity in making rulings of fact or law.

GilesFiles on December 31, 2016 at 9:47 am

Guard against bias in con/arb proceedings

In a conciliation/arbitration matter the LC reviewed and set aside an award in terms of s145(2)(a)(i) of the LRA simply on the grounds of the arbiter’s misconduct. During the conciliation stage the arbiter expressed ‘views’ on the merits but then refused to recuse himself during the arbitration. He refused to hear an application for recusal and then falsely claimed the parties had agreed to him arbitrating the dispute. So the arbiter deprived the employer of a lawful, reasonable and procedurally fair arbitration hearing. This had the effect of vitiating the entire award and the matter had to be sent back to the CCMA.

Premier Foods (Pty) Ltd (Nelspruit) v CCMA (JR2103/12) [2016] ZALCJHB 426 (8 November 2016) per S Snyman AJ.

Comment:

There are some interesting statements in the judgment about the dangers of allowing the same person to conciliate a dispute and then preside as arbiter. ‘Reality testing’ is explained, although some refer to ‘supposals’. But neutrals must suppress the urge to express any views at any stage. This also means that the parties must exercise extreme caution in what they say to the ‘arbiter’ during the conciliation phase. All discussions are meant to be completely confidential. But they cannot be erased from the mind of the ‘arbiter’ if the arbitration proceeds before the same person.

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