Practice: Outsider's CJ candidacy puts mediation front and center

It is a long shot, but the only 'pale male' to make the short list for the Chief Justice post, Alan Nelson SC, is using his candidacy to draw attention to the benefits of mediation, a controversial issue in the legal profession. As the 'champion of mediation', Nelson contends that mediation is in the interests of just solutions to disputes that advance accessibility and effectiveness of courts via just outcomes to disputes that come to the courts, says Accountability Now's Paul Hoffman.

In a Daily Maverick analysis, Hoffman says the role of judges in advancing mediation is one that is critical to the success of the project, but it is one that has yet to be thought through by those in authority or embraced by the legal professions or, at least, those within them who are actuated by base self-interest and are fearful of losing an income stream that comes their way from hard-fought litigation. 'As the apostle of mediation, Nelson has brought the zeal of the converted to the topic of mediating disputes rather than litigating them. He incurred the ire of the leadership of the Cape Bench, and some of its members, when he elected to mediate for willing parties whose matters were allocated to him for trial when he acted as a judge in Cape Town,' Hoffman notes. However, many practising lawyers see mediation as a threat to their livelihoods and they oppose or resist its introduction, he adds. 'They perceive, perhaps correctly, that mediation is the Kool-Aid that will kill off the type of litigation from which they make a good living.'

The mission Nelson brings to his candidacy for CJ is to make mediation a better and more viable option in SA, Hoffman notes in the DM analysis. To do so he can rely on the requirements of ‘accessibility and effectiveness’ of courts as set out in section 165 of the Constitution, Hoffman writes. 'If courts are clogged with parties tugging in opposite directions or butting heads when they could be working together in the same direction, then a great deal of court time is wasted on umpiring the tugging and the butt-fests. If mediation precedes litigation and is utilized to good effect, then only the most intractable of cases will get to litigation. Many, if not most, are amenable to mediation and can be solved in a manner that appeals to both parties rather than seeing one win and the other inevitably lose.

Mediations are aimed at achieving "win-win" outcomes to disputes.' Hoffman says it is arguably in the overall interests of the administration of justice that greater use be made of mediation. He argues that the adversarial style of the courts is a remnant of the colonial era; the African way of resolving disputes aligns more with mediation than it does with litigation.

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