You acted as the defendant’s attorney in a recent RAF moot mediation. What did you learn about the mediation process in this matter?
The matter was presented as a training exercise, to show mediators how a RAF mediation ought to work. We had done a dry run of the mediation beforehand and all of the various positions were worked out in advance. Doing the actual moot was like a dance with all the steps determined in advance. Feedback from the webinar participants indicated that it was a successful exercise. I liked a comment from one mediator in particular: “It was fascinating – more fascinating than a movie. l could not wait for each next step, just to be surprised by a new twist!”
Why is RAF mediation becoming a reality at this point in time?
There are a plethora of reasons but high on the list are three factors. First, the new Rule 41A, which incorporates mediation as an integral part of the litigation process. Second, the RAF’s new business model, which is focused on early settlements of claims and settlements of claims outside the litigation process. And third, cost and speed. A well-run mediation should cost about a tenth of what litigation would cost to arrive at much the same result and it should be completed at least two years sooner than a litigated matter would be completed.
Are RAF matters well suited to the mediation process?
Very much so. The very nature of delictual claims – which RAF claims in essence remain – is perfect for mediation. I know it’s a generalisation, but any claim sounding in money is perfect for mediation. I have always maintained that if you can litigate a matter then you can mediate it, unless of course it is something like a constitutional challenge which has to be litigated so that the Constitutional Court can eventually rule on it.
Mediation differs from litigation in that it preserves relationships between people. Does mediation offer you the opportunity to apply skills which are not essential in matters that go to court?
Yes, it does. In litigation, it is possible to have a complete at-arm’s-length relationship with your opponent, never directly talking to him/her, doing so only via correspondence or an advocate. You can get by with very little people skills and can be as abrasive as circumstances allow while steadfastly refusing to compromise your position until a judgment either validates or punishes you. Mediation, in contrast, is a desire to settle or resolve a dispute with both parties’ agreement, because it is always a voluntary process. Having voluntarily committed to a mediation, the point of departure is to engage and discuss, to debate your position in a civil and relaxed atmosphere, to compromise and to acknowledge the inherent risks of litigation. In mediation, you keep on talking until a solution reveals itself. It is, in essence, settlement negotiations on steroids!
What will the mediation process offer those with claims against the RAF in future?
Speedy and cost-effective resolution of their claims.