Mediation In South Africa
Mediation
Mediation is an old concept. From the first time someone said: “let’s talk about it” people have been trying to resolve differences through one form of mediation or another.
The truth is that we all face conflict in various forms throughout our life time. It may be work related, relationship related or even trauma related. There are naturally many ways for people to deal with conflict from the option to simply ignore it all the way to the opposite end of the spectrum where people will hop in tanks and drive into other people’s villages and set them on fire.
It seems then that the need for one type of mediation or another has always been around through history but there have not always been easily accessed forums or service providers who could fill this role.
Mediation In South Africa
The CCMA has long been South Africa’s leading and perhaps best known mediation forum. It helped countless companies and people avoid lengthy and expensive court processes. It is a fine example of what can be done in the world of mediation.
There are, of course, many other examples but the purpose is often the same: to find solutions, for the benefit of all parties, that help keep costs down and provide a speedy resolution. When you consider that many court cases can take around 3 years to actually be heard and the cost of Attorneys and Advocates, the benefits of mediation become pretty obvious.
‘The CCMA has long been South Africa’s leading and perhaps best known mediation forum’
Debt Counsellors are sensitive to the aspect of mediation since there is a history of credit providers trying to circumvent the debt review process, back in the day, via the creation of the National Debt Mediation Association (NDMA). Their website sometimes still misspells debt counselling after all these years (sad).
There are also countless so called ‘debt mediation’ scams run by people across the country which have left consumers penniless and unprotected over and over. Many scam artists pose as offering the services of debt review but outside the protection of the NCA and away from the oversight of the National Credit Regulator (NCR). Hundreds of thousands of people have been burnt and enforcement has been weak in this regard. This is not true mediation.
The NCA & Mediation
The National Credit Act (NCA), in particular, embraced the concept of mediation for some types of dispute resolution regarding credit matters (not the paying off of debts – which would be debt review – but the settling of issues surrounding credit matters). It introduced the creation of Alternative Dispute Resolution (a type of NCA related mediation). It requires professionals to register and pay big fees to be part of the industry.
‘The National Credit Act…introduced the creation of Alternative Dispute Resolution (a type of NCA related mediation)’
The intent is not to compete with debt review and the specific role of Debt Counsellors but rather to facilitate quick resolution of disputes (big and small) relating to individual credit accounts. There have been concerns about the implementation and scope of work done by mediators but it is hoped that the role of ADR agents will become clearer and clearer over time.
Court Annexed Mediation
Other legislation like the Court Rules (Rules Board for Courts of Law Act) and others have introduced Court-Annexed Mediation with the hope of promoting the use of mediation to reduce the workload of the courts and help resolve matters without litigation.
Parties to new legal action now have to indicate (when they submit court papers) if they would be open to mediation or not. If they are not willing, they will then, later, face fees issued by the court for not being willing to do so. It is hoped these added costs will drive more people to embrace the wide range of available and specialized mediation that is now on offer.
ADR Training & Associations
There are now specialized training bodies, such as the fast growing ADR Network SA, which can certify mediators and provide critical training in the various forms of mediation (from dispute resolution for divorce, commercial disputes, labour disputes, medical negligence, restorative justice or even human rights and constitutional disputes).
Be sure to read our Feb issue for a deeper insight into what mediation training is like.
This article first appeared in Debtfree Magazine issue #1 of 2021