Terror…

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TERROR

The slender chain of trust upon which all human relations are based is broken — and this the terrorist knows and sharpens his claws precisely here; for his primary objective is not battle. It is to bring down upon the community in general a reprisal for his wrongs, in the hope that the fury and resentment roused by punishment meted out to the innocent will gradually swell the ranks of those from whom he will draw further recruits………. Durrel , Lawrence. ‘Bitter Lemons of Cyprus, (London 1957).

 

What mediation style do you need? Facilitative, Evaluative, Transformative

What mediation style do you need? Facilitative, Evaluative, Transformative

Often, too little thought is given to the mediation styles that mediators practice.  It is important for users of mediation services to select a mediator with a style or number of styles that meet the needs of their specific case – right both for all the parties involved and for the situation that needs to be resolved.  But, as in the choice of any professional service, you first need to identify your likely needs and then ensure your choice of a professional meets those needs.

Essentially, there are three main – and rather different – mediation styles: Facilitative, Evaluative and Transformative.  For a concise review of what practice styles and skills are involved in each style, click here.

Although a facilitative style is commonly regarded as the most mainstream form of mediation, it is not unusual in a mediated dispute that evaluative and/or transformative competencies are applied by the mediator at different moments and in differing measures.  Many mediators shift easily from one style to another according to the needs of the situation.  But some facilitative mediators prefer not to be evaluative unless they are specifically asked by the parties.Mediation HAGAR

If the most important tasks are to overcome communication blockages, identify hidden obstacles, develop options for mutual gain, and help the parties think creatively and enable an agreement to be reached, the parties probably want a facilitative mediator.

If the parties perceive that there will be a need for the mediator to break deadlocks by giving non-binding opinions, asking hard questions, making comments about the facts and the law of the case, guiding the parties in other more directive ways, or helping set guidelines for a settlement based on objective norms (such as Industry standards, law, etc), they will probably want a mediator who is able to be evaluative.

If the goal is not to resolve a specific dispute but rather to improve the parties’ relationship, and if that relationship is important for the future, then a transformative mediator will focus more on helping the parties communicate and work together than on resolving short term conflicts.  Among other applications for transformative mediation in business contexts are relations among: competitors or members of an Industry, joint venture partners and the regulated and regulators/government agencies.

It helps if the parties discuss these issues before narrowing the search for a mediator or a Mediation Provider and then discuss the styles wanted with short-listed mediators.  Agreements to mediate can also reflect style issues – for example the inclusion of a paragraph confirming the parties’ expectation that the mediator will be asked to give a non-binding view or evaluation if a deadlock is reached.

IMI- International Mediation Institute

SOUTH AFRICAN HIGH COURT OBLIGES LAWYERS TO GO TO MEDIATION

SOUTH AFRICAN HIGH COURT OBLIGES LAWYERS TO GO TO MEDIATION

 

On 25th August 2009 the South Gauteng High Court in Johannesburg in the case of Brownlee v Brownlee held that the failure by attorneys to send a matter to mediation at an early stage should be visited by the Court’s displeasure. The Court limited the costs that the attorneys could recover from their clients to those that they could tax on the party and party scale and thereby deprived them of their full attorney and client fees.

LawyerDivorce

 

FACTS
The case concerned the dissolution of a marriage, parental rights, maintenance and the division of the joint estate. The evidence indicated that the cumulative legal costs of the litigation would be between R500 000 and R750 000 when the joint estate was worth just more than R3 million.

DISCUSSION
The Court noted that in terms of the Rules of Court, one of the matters that must be considered at a pre-trial conference is whether the dispute should be referred for possible settlement by mediation. In the case, the legal representatives had no hesitation in answering the question in the negative.

Brassey AJ however said the following about mediation “Mediation can produce remarkable results in the most unpropitious of circumstances, especially when conducted by one of the several hundred people in this country who have been trained in the process. The success of the process lies in its very nature. Unlike settlement negotiations between legal advisors, in themselves frequently fruitful, the process is conducted by an independent expert who can, under conditions of the strictest confidentiality, isolate underlying interests, use the information to identify common ground and, by drawing on his or her own legal and other knowledge, sensitively encourage an evaluation of the prospects of success in the litigation and an appreciation of the costs and practical consequences of continued litigation, particularly if the case is a loser.”

The Judge quoted at length from the case of Egan v Motor Services (Bath) [2007] EWCA CIV 1002 in which that Court pointed out that it is sheer commercial folly not to mediate when the costs of mediation would be paltry in comparison with the costs of litigation. He then went on to say “I am given to understand that in England the all but obligatory recourse to mediation has profoundly improved the process of dispute resolution. Parties resolve their problems so much more cheaply as a result and the burden on the Court roles has been considerably lightened. Informed estimates put the success rate of mediation at between 80% and 90%.”

DECISION
The Court held that “In the process of mediation, the parties would have had ample scope for an informed but informal debate on the levels of their estates, the amount of their incomes and the extent of their living costs. Nudged by a facilitative intermediary, I have little doubt that they would have been able to solve most of the monetary disputes that stood between them. The saving in time and legal costs would have been significant and, once a few breakthroughs had been made, I have every reason to believe that an overall solution would have been reached. Everyone would, in the process, have been spared the burden of two wasted days trying to settle in Judge’s chambers and four further days in which the minutia of assets and liabilities and income and expenses were interrogated.” Accordingly the Court deprived the attorneys of their attorney and client costs for failing to recommend mediation.

CONCLUSION
Whilst only the attorneys were deprived of their costs, the risk now exists that parties who unreasonably refuse to mediate will also be deprived of their costs. This risk and the inherent merits of mediation will no doubt drive South African attorneys and their clients into the process and mediation will in time become an integral part of our civil justice system.

 

John Brand
ADR Specialist

 

Draft Agreements with Contract Construction Principles in Mind

CEBblog™

463468333Generally it’s the parties’ mutual intent that controls a contract’s interpretation. But that intent isn’t always easy to figure out. When the parties dispute a contract’s interpretation and it goes to court, the court applies certain statutory principles. Don’t wait for a dispute to learn these principles—be aware of them and let them guide you as you draft every agreement. 

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