THE CULTURE CHALLENGE FROM LITIGATION TO SETTLEMENT CAPE CHAMBER OF COMMERCE AND INDUSTRY CONFERENCE November 2013 Presented by John Brand
INTRODUCTION
OUTLINE An overview of the international culture change What about South Africa? What needs to be done in South Africa?
INTERNATIONAL OVERVIEW EUROPE Active settlement culture in: United Kingdom Sweden England and Wales Greece France Netherlands Italy Spain Denmark Portugal Finland Norway Ireland Germany
INTERNATIONAL OVERVIEW EUROPE Emerging settlement culture in: Russia Bosnia Slovenia Czech Republic Slovakia
INTERNATIONAL OVERVIEW UNITED KINGDOM AS AN EXAMPLE Rule changes 1999. Woolf reforms and 2013 Jackson reforms Pre-action protocols Case law Halsey v Milton Keynes General NHS Trust PGF II SA v OMFS Company I Limited Ethical duty Government pledge CEDR / CPR Pledge Law firm support
INTERNATIONAL OVERVIEW UNITED KINGDOM AS AN EXAMPLE As a consequence the Centre for Effective Dispute Resolution (CEDR) in the UK says: The value of cases mediated in the UK each year is approximately 7.5 billion (2010: 5.1 billion) Since 1990 the total value of mediated cases is approaching 50 billion Commercial mediation saves UK business around 2 billion a year in wasted management time, damaged relationships, lost productivity and legal fees
INTERNATIONAL OVERVIEW UNITED KINGDOM AS AN EXAMPLE CEDR in the UK says: Since 1990, mediation has contributed savings of 12.5 billion By way of a comparator, the aggregate value of mediation fees is around 20 million The current size of the civil and commercial mediation market in the UK is in the order of 8,000 cases per annum. This represents a year-on-year increase of about 15% per annum since 2010
INTERNATIONAL OVERVIEW Growth of mediation in the United Kingdom 9 9000 8 8000 7000 7 6000 6 5000 5 4000 4 3000 3 2000 2 1000 1 2003 2005 2007 2010 2012
INTERNATIONAL OVERVIEW EUROPE There has been such mediation growth in Europe that the European Commission has issued a directive to harmonise European mediation
INTERNATIONAL OVERVIEW IN HOUSE COUNSEL SURVEY The 2013 International Mediation Institute survey of international corporations found that in house counsel say that: Mediation should be a compulsory procedural step in the conduct of all commercial disputes, in both litigation and arbitration RESPONSE % COUNT Strongly agree 18 13 Agree 30 22 Neutral 15 11 Disagree 27 20 Strongly disagree 10 7 TOTAL RESPONSE 73 http://www.centredemediationculture.com/imi-full-results.pdf
INTERNATIONAL OVERVIEW IN HOUSE COUNSEL SURVEY The 2013 International Mediation Institute survey of international corporations found that in house counsel say that: Parties to an arbitration proceeding should be actively encourage by arbitration provider to use mediation to settle their dispute RESPONSE % COUNT Strongly agree 32 23 Agree 42 31 Neutral 22 16 Disagree Strongly disagree 3 1 2 1 TOTAL RESPONSE 73 http://www.centredemediationculture.com/imi-full-results.pdf
INTERNATIONAL OVERVIEW IN HOUSE COUNSEL SURVEY The 2013 International Mediation Institute survey of international corporations found that in house counsel say that: I expect my arbitration and litigation counsel to have been trained in mediation advocacy skills RESPONSE % COUNT Strongly agree 32 23 Agree 48 35 Neutral 14 10 Disagree Strongly disagree 5 1 4 1 TOTAL RESPONSE 73 http://www.centredemediationculture.com/imi-full-results.pdf
INTERNATIONAL OVERVIEW ASIA AND THE MIDDLE EAST A settlement culture is also well established in: Singapore Pakistan Hong Kong China Thailand Japan Bangladesh India Saudi Arabia Israel
INTERNATIONAL OVERVIEW A settlement culture is also well established in: USA Canada Australia and New Zealand South America Africa Nigeria Ghana Uganda Mauritius Rwanda
WHAT ABOUT SOUTH AFRICA? LIKE A CHEETAH SPRINTING AHEAD OR
WHAT ABOUT SOUTH AFRICA? LIKE RIP VAN WINKEL SLEEPING THROUGH A REVOLUTION
STATE OF CULTURE CHANGE IN SA Legacy of mediation Traditional African dispute resolution Labour mediation IMSSA and the CCMA The Peace Process and political transition Family mediation International mediation
STATE OF CULTURE CHANGE IN SA Mediator training Over 300 commercial mediators have been trained and accredited to world standards by: The Centre for Effective Dispute Resolution (CEDR) UK Conflict Dynamics and The African Centre for Dispute Settlement Royal Institution of Chartered Surveyors ADR Group UK
STATE OF CULTURE CHANGE IN SA Service providers have been established eg. Tokiso Equillore Cape Chamber Standards have been set DISAC
STATE OF CULTURE CHANGE IN SA Advocacy training has taken place Conflict Dynamics LEAD There has been some Statutory change plus 40 Statutes But no overarching UNCITRAL Model Mediation Law
STATE OF CULTURE CHANGE IN SA There has not been any Rule change draft Rule 31 October 2011 draft Practice Directive 18 November 2013 Corporate Governance requires mediation King III There has been very limited judicial activism MB v NB 2010(3) SA 220
STATE OF CULTURE CHANGE IN SA Ethical duty none Pledges none Lawyer support limited Incidence very low Awareness very low
OBSTACLES TO CULTURE CHANGE IN SOUTH AFRICA Mediators in the Conflict Dynamics 2013 Survey identified the following obstacles: Other Apparent lack of support for mediation by the judiciary Absence of supporting legislation Absence of compulsory mediation Adversarial approach of lawyers Perceived threat to legal profession Lack of awareness of mediation 0 10 20 30 40 50 60 70 80 90 100 % http://www.conflictdynamics.co.za/newsarticle/2013-mediator-survey-results
WHAT NEEDS TO BE DONE IN SOUTH AFRICA AWARENESS BUILDING Judiciary Government Business Lawyers Law students
WHAT NEEDS TO BE DONE IN SOUTH AFRICA CREATION OF A DUTY TO MEDIATE Contract Pledges Court Rules mandatory non-mandatory
WHAT NEEDS TO BE DONE IN SOUTH AFRICA CREATION OF A DUTY TO MEDIATE Practice Directives Legislation mandatory non-mandatory Judges active case management and costs awards
WHAT NEEDS TO BE DONE IN SOUTH AFRICA CONTINUED MEDIATOR TRAINING Trained to world standards With accreditation and credibility
WHAT NEEDS TO BE DONE IN SOUTH AFRICA ESTABLISHMENT OF SERVICES Need for more quality services court aligned private pro bono Delivering to the top and the bottom of the market
WHAT NEEDS TO BE DONE IN SOUTH AFRICA MEDIATOR ADVOCACY TRAINING Lawyers In-house Counsel Parties
CONCLUSION Huge potential benefits Rich experience to build on Need to keep pace with the rest of the world