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THE ROLE OF THE LAWYER IN THE

COMMERCIAL MEDIATION PROCESS:
A CRITICAL ANALYSIS OF THE LEGAL AND
REGULATORY ISSUES
RONAN FEEHILY†
Senior Lecturer, Middlesex University; Honorary Fellow of Commercial Law,
Durham University

The most common complaint about the current civil justice system in South Africa is that
the cost of litigation is prohibitive. Mediation can produce cost-effective results for
disputing commercial parties that an arbitrator is unlikely or unable to award or a court
would or could never decree, such as an apology or the redrafting of a commercial agreement
to take account of changed economic circumstances. Parties in a mediation empower
themselves to find their own solution with the assistance, guidance and support of their
lawyers who are present as legal advisers rather than legal representatives. The article
analysis the role of the lawyer in this context, the limits of adjudication and the
possibilities of commercial mediation and the differing core values, roles and processes
between the two approaches. The duties of lawyers before and after the process commences
are analysed. The potential legal liability of lawyers in mediation is analysed and the role
of lawyers as gatekeepers of the process is discussed. Mediation operating in the shadow of
the law and its closeness to the justice ideal are the final issues considered. Throughout the
piece the author provides commentary on proposals for regulatory and law reform covering
this area.

I INTRODUCTION
In jurisdictions where the common law is the foundation of the legal system,
commercial litigants are likely to have access to a sophisticated and rigorous
legal process. In order to achieve a judgment or award, lengthy pleadings will
be exchanged, document disclosure undertaken, witness statements prepared
and exchanged, and a full trial will ensue with a judge or arbitrator hearing
oral evidence, examination, cross-examination, and arguments from lawyers.
The system is based on the presumption that there is a correct way of
deciding every issue in dispute and those involved in the process work within
that presumption. The system, by its nature, is adversarial. As one commenta-
tor put it, the assumption is that if you let the parties engage in battle in a
controlled environment, the cut and thrust of the process will elicit the
important facts and ensure that all relevant arguments are adduced as an aid to
the judge or arbitrator in reaching a conclusion.1
For those whose rights are being tested or contested, the expense has
become onerous. Clients in the United Kingdom have been advised for some

†
BCom (Hons) LLB (Hons) MBA (NUI) LLM (Dub) PhD (UCT) DipArb
PGCERT FCIArb FHEA. Solicitor (Ireland, Northern Ireland, England and Wales),
CEDR Accredited Mediator.
1
Fergus Armstrong ‘Business litigation and the litigation business, getting to
settlement through mediation’ 2004 Public Affairs Ireland at 4.

351
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352 (2016) 133 THE SOUTH AFRICAN LAW JOURNAL

time that even disputes over millions of pounds cannot economically be

taken to trial.2 As a result, there has been a move in such jurisdictions from
court adjudication and arbitration towards mediation.3
Many years ago, former United States Chief Justice Warren Burger
observed that people want a rapid resolution of their disputes. He wrote that
‘[t]he notion that ordinary people want black-robed judges, well dressed
lawyers and fine courtrooms as settings to resolve their disputes is incorrect.
People with problems, like people with pains, want relief, and they want it as
quickly and inexpensively as possible.’4 The emerging popularity of com-
mercial mediation as an alternative form of dispute resolution would appear
to be a realisation of this logic.

II THE ROLE OF THE LAWYER WITHIN THE SYSTEM

When people in business conclude an agreement such as a sale, lease, agency,
joint venture, partnership or any kind of contract, they assume a number of
legal rights and duties. As time passes and circumstances change, their
enthusiasm or ability to perform their duties may diminish, so that one of the
contracting parties cannot comply with the contract as initially drafted.5
Litigation usually results, which in turn causes communication between
the parties to shut down, the vacuum being filled by lawyers’ letters,
pleadings and other legal notices which slowly move the parties toward a
distant trial date, characterising what has been described as the ‘quintessence
of any state-sponsored adversarial process of adjudicative dispute resolu-
tion’.6 The legal system is not designed to solve people’s problems; it has the
loftier and more abstract goal of finding the truth. As truth-finding and
problem-solving are not always the same thing, when parties have a dispute,

2
Philip Naughton QC ‘Enforcement of multi-tiered dispute resolution clauses’
IBA Section on Business Law Arbitration and ADR (October 2001) 10.
3
Alternative Dispute Resolution has been described as the ‘hot button’ in such
developments in the law with mediation as its most ‘promising province as its devel-
opment transforms the goals and values of the traditional legal process’. See Jerome
Shesteck, former President of the American Bar Association in the ‘Introduction’ to
John R van Winkle Mediation: A Path for the Lost Lawyer (2001) vii. See also Jacqueline
M Nolan-Haley ‘Lawyers, non-lawyers and mediation: Rethinking the professional
monopoly from a problem solving perspective’ (2002) 7 Harvard Negotiation LR 235 at
299.
4
Chief Justice Warren Burger ‘Our vicious legal spiral’ (1977) 22 Judges Journal 49.
See also Bryan Clark Lawyers and Mediation (2012) 83.
5
Mark Antrobus & Roland Sutherland ‘Some ADR techniques in commercial
disputes: Prospects for better business’ in Paul Pretorius (ed) Dispute Resolution (1993)
164. See also World Bank Group ‘Immediate resolution. The role of the lawyer in out
of court dispute resolution’(April 2013) 4, available at https://www.wbginvestmentclimate.
org/advisory-services/upload/Im-mediate-Resolution_The-Role-of-the-Lawyer-in-Out-of-
Court-Dispute-Resolution.pdf, accessed on 29 December 2014.
6
Antrobus & Sutherland ibid.
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THE ROLE OF THE LAWYER IN THE COMMERCIAL MEDIATION PROCESS 353

rather than finding the truth, they are more likely to want their problem
solved, quickly, fairly and inexpensively so that they can get on with their
lives.7
To paraphrase author Jerold S Auerbach, commercial disputants should
not have to tolerate an experience that may resemble ‘a sudden regression to
childhood’, where they do not understand the procedures or the language,
where the lawyer assumes the role of a parent and the parties become the
dependent children, and where ‘the judge looms as a menacing authority
figure, empowered to divest you of property or liberty’.8
Logic suggests that dealing with disputes through litigation is not always
the most advantageous way to do business. The purpose of entering into a
business relationship is to create shared wealth. When a dispute arises, it
should not be necessary to move straight from a consensus-seeking relation-
ship into an adversarial relationship. Disputing parties should be encouraged
by their lawyers to focus their minds on the most appropriate way to further
their business interests.9
Whatever the reason for the dispute, unplanned legally unforeseeable
circumstances may have persuaded one party that it cannot financially afford
to comply with the contract. In such circumstances, there is a reasonable
probability that an attempt to discuss the problems frankly with all concerned
parties, including their origins, and to devise a workable solution acceptable
to all, can put an end to a dispute before the process of litigation must be
embarked upon. Such considerations lead inevitably to the implication that
where possible an honest effort to discuss the issues should happen. If it does,
what can follow is good-faith negotiation through which agreement may be
achieved. Admittedly, commercial parties will know from experience that
such a scenario occurs rarely, but what they may not fully appreciate is that
the failure of direct communication and good faith negotiation is not, on its
own, a sufficient reason to resort to litigation.10
The opportunity may still exist for the application of consensual skills
rather than the lawyers’ adversarial skills, and parties should be encouraged to
reflect on whether the impasse can be resolved without resorting to litigation
and by pursuing business interests rather than legal rights. If the commercial
mediation option is chosen, legal rights are not abandoned unless and until a

7
Peter Lovenheim Mediate, Don’t Litigate (1989) 4.
8
Jerold S Auerbach Justice Without Law? (1983) viii.
9
Antrobus & Sutherland op cit note 5 at 164. In a survey conducted by the
Centre for Effective Dispute Resolution (‘CEDR’) in the UK into corporate habits
with regard to dispute handling, only 37 per cent of managers said that they felt
trained to cope with business conflict. See Tony Allen ‘Acquiring the skills to handle
disputes’ (June 2014) CEDR available at http://www.cedr.com/articles/?item=Acquiring-
the-skills-to-handle-disputes, accessed on 1 January 2015.
10
Antrobus & Sutherland ibid at 165. On collaborative approaches in business
generally, see Karl Mackie ‘The collaboration conundrum?’ (January 2014) Inspire;
Institute of Leadership & Management available at http://www.cedr.com/articles/?item=
The-Collaboration-Conundrum, accessed on 1 January 2015.
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new agreement is reached. Furthermore, the fear that suggesting assisted

settlement is indicative of weakness is often unfounded.11
The essence of the process and procedures described as commercial
mediation is the idea that each party should put its interests above its rights
and/or duties in law and in good faith reach out to the other party to do the
same. When one has tried, and direct negotiations break down, the dispute
may be ripe for mediation. As mediation is founded upon interests and not
upon rights, parties should be encouraged to recognise that the mediation of
a business dispute has a lot more in common with the objective of the
contract entered into than litigation can ever have.12 Litigation always carries
with it a price that business litigants must fund, both directly through legal
costs, and indirectly in terms of management time. As Cloke & Strachan
observed in respect of the US experience almost thirty years ago, ‘[t]o
proceed from complaint to lawsuit without attempting settlement through
the auspices of a trained mediator no longer makes sense’.13
Commercial parties in dispute find that mediation works in the appropri-
ate circumstances as it is forward-looking rather than backward-looking.
While the law looks to the past to determine who was right and who was
wrong, mediation looks to the future to find a solution with which both
parties can live. In law, the court uses its power to dictate a solution, while in
mediation parties empower themselves to find their own solution with the
assistance, guidance and support of their lawyers.14

(a) The legal system

As noted above, civil litigation involves placing a dispute before a judge or
jury in order to examine a past event and determine how much money one
party should pay the other party for what is usually a private conduct or
wrong. In most jurisdictions, civil cases are primarily contract or tort/delict
cases, while only a small proportion of civil cases involve public policy,

11
See Antrobus & Sutherland ibid.
12
Ibid.
13
Kenneth Cloke & Angus Strachan ‘Mediation and prepaid legal plans’ (1987) 18
Mediation Quarterly 94. Lawyers’ work is advancing into new areas of commercial
practice that require advising clients in conflict situations in a context of collaboration
and compromise. See Nolan-Haley op cit note 3 at 299.
14
See Lovenheim op cit note 7 at 14. A survey of 143 legal practitioners involved
in international commercial transactions conducted by Queen Mary University, Lon-
don and PricewaterhouseCoopers LLP found that 60 percent of respondents prefer to
use some form of Alternative Dispute Resolution (‘ADR’) (including commercial
mediation) in resolving cross-border disputes. The prime reasons listed for choosing
ADR mechanisms were the confidential nature of ADR compared to court proceed-
ings, and its relative speed and cost-effectiveness. See Queen Mary University of
London and PricewaterhouseCoopers ‘International arbitration: Corporate attitude
and practices’ (2006). See also World Bank Group op cit note 5.
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THE ROLE OF THE LAWYER IN THE COMMERCIAL MEDIATION PROCESS 355

constitutional rights or other issues affecting the public.15 Most civil cases
involve money, and even when a claimant seeks more than this, it seems that
there is often a strong systemic pressure to re-frame the dispute into a purely
economic one. While clients may be seeking restorative and retributive
justice, it seems that lawyers usually inform their clients that all they can do
for them is file a lawsuit seeking financial compensation, believing that it is
preferable to be candid from the beginning about the limitations of the legal
system and the lawyer’s role in it.16
While courts in jurisdictions such as England were historically divided into
law and equity divisions, today this division exists mostly in name only, as
equitable courts can administer justice and order remedies beyond compen-
sation for losses. Commentators have remarked that as society becomes more
complex, courts have diminished, if not eliminated, equity’s separate func-
tion in the justice system. For example, current evidentiary rules give little
effect to equity in these jurisdictions as rules limiting evidence of subsequent
remedial repair seem to avoid prejudice, encourage repairs and confirm that
juries cannot order disputants to modify their behaviour. Further actions
such as apologies or changes in policies or practices do not seem to be
ordered in many court cases, and even where courts still have the technical
power, it seems that they rarely exercise it in claims where monetary relief
appears to be available and adequate, so that when injunctive relief is
available, courts frequently focus on the compensatory aspects of a possible
verdict.17
Arbitration was originally created as a true alternative to the judicial
system. Aristotle viewed it as a source of equity where arbitrators employed a
broad discretion in order to fashion remedies, although this perception of the
process is not the contemporary viewpoint in the legal community. It seems
that over the past few decades, arbitration has been viewed more as a choice
of forum rather than as an alternative process; it having become ‘legalised’,
with arbitrators being asked to act as trial judges in applying statute and
common law to claims.18 The prominent Alternative Dispute Resolution
(‘ADR’) organisations in the USA, such as the American Arbitration
Association (AAA), CPR Institute for Dispute Resolution, Judicial Arbitra-
tion Mediation Services (JAMS), and the National Arbitration Forum,

15
Robert A Creo ‘Business and practice issues of US mediators’ in Christopher
Newmark & Anthony Monaghan (eds) Mediators on Meditation: Leading Mediator Per-
spectives on the Practice of Commercial Mediation (2005) 310.
16
Ibid at 311.
17
Ibid. It has been suggested for some time that lawyer representation at mediation
is an underdeveloped field. See Kimberley K Kovach ‘New wine requires new wine-
skins: Transforming lawyer ethics for effective representation in a non-adversarial
approach to problem solving (2001) 28 Fordham Urban LR 935. See Jean Sternlight
‘Lawyers representation of clients in mediation: Using economics and psychology to
structure advocacy in a nonadversarial setting’ (1999) 14 Ohio State Journal on Dispute
Resolution 269. See generally Nolan-Haley op cit note 3 at 296.
18
Creo ibid.
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promote arbitration in this way. Many observers believe this is one of the
principal reasons why the number of civil trials in the USA has dropped to
less than two per cent of cases filed from an historical average of slightly
below five per cent.19 The impact of mediation and other judicial, legislative
and corporate initiatives has no doubt also contributed to this trend, while
the diminution of courts of equity and equitable remedies in arbitration are
also contributing factors to mediation serving as an alternative process, with a
variety of remedies available that are not available at law or from a jury
system.20
South African lawyers essentially apply a common-law process to laws
drawn from the old (Roman)-Dutch civil law. The system is a kind of
uncodified civil law, which co-exists with traditional community dispute
management such as the makgotla. While the legal profession in South Africa
has been hesitant to embrace the mediation of civil legal disputes, the fall of
the apartheid system has opened the entire legal spectrum to ADR and put
mediation very clearly on the South African map.21
Mediation, as a universal process, has the ability to transcend legal norms
and systemic difficulties, and as such, leaves the civil/common law distinc-
tion largely redundant, for the purposes of a mixed legal jurisdiction such as
South Africa.22 As the Law Commission has acknowledged, the justice
system in South Africa is under constant scrutiny and criticism from various
interest groups, including business, who are continually looking for more
efficient and effective, less cumbersome and expensive, and often less
conflicting ways of resolving disputes.23 This is the case in most advanced
countries, even where there are very sophisticated judicial systems.24
Similar to the experience elsewhere, the most common general complaint
about the current system of justice in South Africa is that the cost of litigation
is prohibitive.25 The Law Commission recognised that this prevents mean-

19
Ibid.
20
Ibid.
21
Nadja Alexander (ed) Global Trends in Mediation (2003) 8. See also Mohamed
Paleker ‘The changing face of mediation in South Africa’ in Alexander (ed) op cit at
301. In light of the disparity in make up and composition of legal professionals in
different jurisdictions, it is difficult to undertake a comprehensive comparative study
into lawyers spanning the civil and common law divide. For a more general discus-
sion on the involvement of lawyers with mediation in different jurisdictions focusing
on overarching trends, commonalities and divergences, see generally Clark op cit
note 4.
22
See Alexander ibid at 4. The heavy reliance upon common-law jurisdictions in
this paper stems largely from the fact that mediation is more developed in these
jurisdictions. However, evidence gleaned from experience in one jurisdiction may
signal future prospects in other jurisdictions. See Clark op cit note 4 at vi.
23
See South African Law Commission Issue Paper 8 (Project 94) Alternative Dis-
pute Resolution (1997) 5.
24
AM Omar ‘AFSA: The need for alternative dispute resolution’ address delivered
at the opening of Arbitration House as extracted in (1996) 9 Consultus 126.
25
South African Law Commission op cit note 23 at 5.
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THE ROLE OF THE LAWYER IN THE COMMERCIAL MEDIATION PROCESS 357

ingful access to courts and even those with access are often victims of delay,
which means added expense and for many people justice delayed is justice
denied. Delay combined with the cost of litigation has put justice beyond the
reach of many. The incomprehensibility and adversarial nature of the process
together with a resulting lack of control, where parties can only participate in
an indirect manner, has led to a sense of frustration and disempowerment.
Courts offering only trials are also seen as being limited in their response to
legal disputes, and similar to the experience elsewhere, the Law Commission
concluded that litigation often creates winners and losers, and even winners
may feel like losers given the limited nature of the legal remedies that are
imposed from a restrictive range of win or lose options.26
Traditional forms of ADR processes have been in existence in rural parts of
South Africa for some time. Unofficial dispute resolution has also been the
norm in metropolitan areas since these areas were initially established, and
the earliest unofficial people’s courts, founded in 1901 in the township of
Uitvlugt in the Cape Town area, were the civic associations that had dispute
settlement functions.27
Commercial arbitration is well established in South Africa. The Alternative
Dispute Resolution Association of South Africa (‘ADRASA’) and the
Arbitration Foundation of South Africa (‘AFSA’) have had reasonable success
in institutionalising private commercial arbitration and, to a lesser extent,
mediation. Similar initiatives also exist in the fields of engineering and
construction.28
(b) The limits of adjudication and the possibilities of commercial mediation
Conventional legal processes seem to be grounded in the ethic of conscience
or conviction, on the belief, as previously mentioned, that there is an
absolute right or wrong in a given situation and that the right decision is
attainable. They concern themselves more with individual motive and action
rather than with social consequence. Conversely, commercial mediation is
based on the ethic of responsibility or consequence and moral ambiguity,
accepting that one has to weigh the consequences of one’s actions and take
account of the ‘real world’ and the deficiencies in people on whom we rely
for the end result. It is in this context that it seems more relevant for decisions
to be made with greater focus on their consequences than on the value of
their ‘purity’, in recognition that decision making involves a choice between
the lesser of two evils rather than establishing a ‘perfect right’.29
Conflict is not something to be feared or avoided. If it is suppressed,

26
Ibid.
27
G J van Niekerk ‘People’s courts and people’s justice in South Africa — New
developments in community dispute resolution’ (1994) 1 De Jure 22. See also South
African Law Commission ibid at 6.
28
See South African Law Commission ibid at 7.
29
See A T Trollip Alternative Dispute Resolution in a Contemporary South African
Context (1991) 3–4.
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experience suggests it will reappear in an alternate form. Conversely, conflict

offers an opportunity for understanding, interaction and moving ahead. As
the vast majority of all disputes are settled at the doors of the court, it has been
remarked for some time that it is regrettable to leave efforts for resolving
them to this late, and often uncomfortable, stage.30
Intricate economic markets determine how resources are allocated and
how goods are produced and priced. Like a spider’s web of relationships, a
pull on one strand redistributes tensions throughout the web with different
effects and tensions. There is ample evidence throughout Africa of the
dangers of adjudicated economic markets, reflected in the slow pace of
adjudicatory processes and their inability to keep up with the rapidly
changing economic environments, and the inability of adjudication to
provide for the complex consequences that flow from changes in prices or
wages. It follows that adjudication is equipped to distinguish black and white
but is inadequate in recognising shades of grey and the importance of
polycentric elements.31
Experience would suggest that ordinary courts and even arbitration have
difficulty in addressing polycentric disputes. It has been suggested that an
arbitrator would be tempted to adopt a mediatory role in order to test out
proposed solutions on disputing parties for their reactions.32 As Fuller points
out:33
‘Irregular and improper as such conversations may appear when judged by the
usual standards of adjudication, it should be noted that the motive for them may
be the arbitrator’s desire to preserve the reality of the parties’ participation in the
decision, to preserve, in other words, the very core of adjudication.’
A central element of commercial mediation is client involvement, and that
is why such processes offer so much to business in conflict.34
(c) Mediation and conventional litigation
It is not in doubt that courts are required to resolve certain disputes, but
equally the court system seems to be organised on the assumption that most
cases will settle, often at the doors of the court. Parties engaging in litigation
will find familiar procedures specified by rules, while parties engaging in
commercial mediation face the additional responsibility of agreeing on the
rules that should apply to the process, so that the path of least resistance is
often to litigate.35
Increasing concern with ‘the pathology of litigation’ is due to the fact that
litigation has become expensive, is often inefficient and has a propensity to

30
Ibid at 4.
31
Ibid at 10.
32
Ibid at 11.
33
Lon L Fuller ‘The forms and limits of adjudication’ (1972) 92 Harvard LR 353 at
396 as cited by Trollip ibid at 11.
34
See Trollip ibid.
35
Ibid.
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develop a life of its own, which is inconsistent with the real objectives of
those involved and not directed by the disputing parties. The result is that the
outcome is much more unpredictable than many lawyers will admit. As many
disputes seem to hinge on the dynamics of personal relationships rather than
on what the law is, commercial mediation endeavours to focus the minds of
disputing parties on resolving the dispute rather than on preparing for trial.36
The interdependence of people’s goals can also influence the type of
dispute resolution process employed. When the goals of disputing parties are
interconnected so that only one party can achieve the goal, it is a competitive
situation, also called a ‘zero-sum’ or ‘distributive’ situation in which ‘individ-
uals are so linked together that there is a negative correlation between their
goal attainments’.37 To the extent that one party achieves its goal, the others
cannot. Conversely, when the goals of all parties are linked so that one party
achieving its goal helps other parties to achieve their goals, it is a ‘mutual-
gains’ or ‘non-zero-sum’ or ‘integrative’ situation where there is a positive
correlation between the goal attainments of all parties. To the extent that one
party achieves its goal, the goals of the other parties may not necessarily be
unattainable, but may in fact be significantly enhanced.38 As commercial
mediation avoids zero-sum games, it is suggested that where there is a
genuine zero-sum game, this is the hallmark of a dispute ideally suited to
adjudication in court, and such a case, once identified, should be put on the
fast track for trial.39
Commercial mediation is unlikely also to be appropriate where one or
more parties are engaging in bad faith or stalling for tactical reasons, if key
decision-makers refuse to participate, if earlier attempts to settle have failed
leaving a party with nothing new to offer, if the case involves fraud, or
requires that a legal point be tested.40 However, mediation may be appropri-
ate in any case that can be settled, which means most commercial disputes.
Consequently, any case that is appropriate for arbitration may be appropriate
for mediation,41 and there will be a greater prospect of success in resolving
the dispute where parties are clearly advised about their role in the process
and also the role that they should expect from their counsel.

36
Ibid at 12.
37
M Deutsch ‘Cooperation and trust: Some theoretical notes’ in M R Jones (ed)
Nebraska Symposium on Motivation (1962) 275 as cited by R J Lewicki, B Barry & D
Saunders Essentials of Negotiation 4 ed (2007) 26n3.
38
See Lewicki, Barry & Saunders ibid at 9–10.
39
Trollip op cit note 29 at 12.
40
Nelson V Barry ‘Mediation: Getting your client and the other side to the table’
Dispute Resolution Specialists available at http://www.mediates.com/drsprcnb.html,
accessed on 27 December 2014. See also David Spencer & Michael Brogan Mediation
Law and Practice (2006) 109–20 and Samantha Hardy & Olivia Rundle Mediation for
Lawyers (2010) 11–72.
41
Paul Pretorius ‘Commercial mediation in the Southern African Development
Community’ (April 2007) 3–4 (paper presented at an Arbitration Workshop in
Mauritius).
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(d) Differing core values, roles and processes

In considering the involvement of lawyers in commercial mediation, it is
useful to consider the core values of lawyers, which are more aligned with
the core values of the courts. Consequently the core values a lawyer
advocates in mediation are often in tension or in conflict with the core values
of mediation as an alternative process.42 Experience from the USA suggests
that one of the dynamics that is emerging from the recent evolution of
mediation is the way in which the attitudes and behaviour of lawyers, with
their core values, is influencing commercial mediators and the mediation
process.43
As the core values of lawyers, judges and courts involve linear thinking and
linear systems such as rules, ethical codes, adversarial orientation, consistent
predicable procedures and compartmentalisation of issues within the law,
they are not aligned with the traditional core values of the mediation process.
This mindset seems to be solidified in legal education which focuses on
recognising issues and a ‘scientific’ application of the law to the facts,
disregarding elements such as culture, politics and values, and embedding at a
very early stage in legal education that emotions are not attached to the law.44
The rules of evidence seem to work against providing a voice for the
disputants, so that only lawyers can tell the story. These rules prescribe that it
is inherently part of the lawyer’s role to be the only voice for disputing
parties. Similarly, the ethical codes to which lawyers subscribe are designed
for a judicial dispute resolution system, not an alternative one like mediation.
These seem to contribute to the unhealthy tension created in the process as
many lawyers ignore their role as advisor outside of a strict legal application.45
A power struggle can occur between the various participants to a
mediation, with lawyers attempting to be the exclusive spokespeople for
their clients, who may also want to express their views, and the mediator
attempting to ensure that there is a balanced approach to the various parties.
As more parties and lawyers become involved, there can be attempts to
legalise the process by creating rules, as lawyers value consistency and
predictability. The result can be that the process starts to look more like
litigation than mediation.46
Mediation practice can be fundamentally affected by the mismatch
between the approach taken by some in the process, and the type of approach
required in order for the process to operate effectively. The education and
training of lawyers, together with centuries of legal precedent and practice,

42
Creo op cit note 15 at 320.
43
Creo ibid at 320–1. Some see the attendance of lawyers in mediation as essential
to protect the rights of participants. See Clark op cit note 4 at vii.
44
Creo ibid at 321. For a detailed discussion of lawyer resistance to mediation see
Clark op cit note 4 at 29–64.
45
Creo ibid.
46
For example, as lawyers and organisations such as the ABA in the USA become
more and more involved in the formalisation of mediation, it is believed that this
trend will intensify. See Creo ibid at 321–2.
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stresses the presence of rules and formalised processes, and enforces a theory
of impartiality about the rule of law. When lawyers then engage in the
mediation process, they often view it as functioning like a court processs, and
believe that impartiality is fundamental to the mediation.47
As a lawyer is hired by a client to be the gladiator in the emerging legal
battle, suggesting the possibility of compromise before the battle has been
fought has traditionally been seen as a sign of weakness, despite the fact that a
lawyer owes a professional duty to a client to provide objective advice that is
in the client’s best interests.48 As US Supreme Court Justice O’Connor put it,
‘courts should not be the places where the resolution of disputes begins. They
should be the place where disputes end, after alternative methods of resolving
disputes have been considered and tried.’49
A lawyer should be seen as playing the two distinct roles of gladiator and
counsellor. As a gladiator, a lawyer fights relentlessly for his or her client’s
interests and ultimate success in court. As a counsellor, a lawyer is obliged to
review dispassionately the strengths and weaknesses of the client’s case and to
recommend various approaches for resolving the dispute including settle-
ment where appropriate.50
One of the difficulties with proposing mediation in the past was the fear
that it may be viewed as capitulation, the perennial problem of ‘who blinks
first’, despite the fact that mediation can serve as a low-key, non-capitulating
way of exploring the possibility of settlement, even in the most acrimonious
of circumstances. Regrettably, disputing parties tend to wait until shortly
before trial to commence serious negotiations, despite the fact that mediation
can save time, money and emotional wear-and-tear. It can also enable parties
to appreciate the practical possibilities and limitations of a case, as well as offer
the opportunity of preserving ongoing relationships.51
(e) The lawyer’s role as advisor
While legal disputes often arise in an atmosphere of disillusionment and
distrust with disappointed or angry clients wanting justice or retribution,
many of these cases ultimately settle. This is despite the fact that a party may
initially remark that they do not care how much it costs, it is a matter of
principle and they want to take it all the way.52
Parties sometimes employ the services of lawyers that are perceived as the
most adversarial in order to punish their adversaries. However, as parties’
attitudes change after passions have cooled and legal expenses have mounted
with little result, parties then settle, often unprepared for settlement, at the

47
Creo ibid at 322.
48
Trollip op cit note 29 at 14.
49
American Supreme Court Justice O’Connor ‘Dispute resolution Texas style’ 1,
as quoted by Trollip ibid at 14.
50
Trollip ibid.
51
Ibid at 15.
52
Ibid at 13.
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doors of the court while legal costs have mounted to significant proportions.
As practitioners are aware, the hidden costs of litigation are often greater than
lawyers’ fees. Contentious cases damage business relations, result in
unfavourable publicity, require numerous hours of management time and
result in judgments which often owe more, as Trollip puts it, to ‘logic
chopping’ than to commercial sense.53
It has been suggested that a lawyer’s role in a mediation is to advise the
client about the availability of the process, to provide pre-mediation advice
necessary for participation in the process, to participate in the process in good
faith to the extent that lawyer participation is required, and to protect the
party’s legal interests in connection with any agreement reached.54 The
advice should be given at the earliest appropriate stage — for example, when
contracts are being drafted — and at every stage after that where mediation
might be a reasonable alternative to litigation.55 It is suggested that a lawyer
must walk a thin line between adequately advising the party about legal
aspects and not preconditioning the party that creative and useful approaches
to settlement are impossible.56 The role of counsel in a commercial
mediation is to represent the interests of their client persuasively and ethically
by engaging in techniques such as attentive listening and posing open
questions, assisting the client in conceptually distinguishing understanding
from agreeing, and advising on bona fide settlement proposals and the legal
enforceability of any resulting agreement.57
Research suggests that there is much confusion among mediators about
the appropriate way to maintain balance in the mediators’ role.58 It has been

53
Ibid at 13–14.
54
John S Murray, Alan Scott Rau & Edward F Sherman Process of Dispute Resolu-
tion: The Role of Lawyers (1989) 367–78.
55
Many corporate multinationals now adopt a ‘mediation first’ approach when
disputes arise. For example, General Electric requires that all its disputes be reviewed
for their suitability to commercial mediation. See World Bank Group op cit note 5 at
3. See also Spencer & Brogan op cit note 40 at 460–71.
56
Murray, Rau & Sherman op cit note 54 at 371.
57
See Joyce W Bradley ‘The lawyer’s role as counsel in mediation: Some practical
and ethical considerations’ Benchers’ Bulletin available at https://www.lawsociety.bc.ca/
page.cfm?cid=1961&t=The-lawyer%27s-role-as-counsel-in-mediation, accessed on 27 Decem-
ber 2014. See also Diane Levin ‘Bridging the divide between lawyers and mediators,
Part 3: What lawyers can do for mediators’ Online Guide to Mediation available at
http://mediationblog.blogspot.ie/2007/03/bridging-divide-between-lawyers-and.html, accessed
on 27 December 2014. It has also been suggested that counsel should not hesitate to
point out when the mediator may be wrong, but appreciate that the key to achieving a
good result in mediation is to help the mediator in conducting the same process with
the other side. See Richard G Spier ‘The ten biggest mistakes lawyers make in
mediation’ 1999 Oregon State Bar Bulletin available at http://mediate.com/articles/spier.
cfm, accessed on 27 December 2014.
58
See L Charkoudian, C De Ritis, R Buck & C Wilson ‘Mediation by any other
name would smell as sweet — or would it? The struggle to define mediation and its
various approaches’ (2009) 26 (3) Conflict Resolution Quarterly 293. This article reports
on two studies. The analysis of the first study, a survey of 250 mediators, reveals four
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THE ROLE OF THE LAWYER IN THE COMMERCIAL MEDIATION PROCESS 363

suggested that the resolution to this dilemma can be found in the approach
adopted; lawyers must also look to the future instead of the past.59 The
missing link is the approach adopted at the preparation stage for litigation and
the absence of a discussion about the purpose and goals of the case or the
perceptions of each party about the motivations, goals and concerns of the
other. Litigation is focused on the past, with assessment of liability-based on
past events in a context where there is an objective set of facts and people
whose recollections diverge from this position are either mistaken or
dishonest. As noted above, the litigation framework provides a single answer
as the correct outcome, in a context where the legal system establishes a set of
rules and standards for general application. Conversely, commercial media-
tion requires an exploration of the possible mediated solutions that may result
and an assessment of the value of the case, including a consideration of the
potential for success, against the financial and emotional costs of pursuing it
in a context where limitations on possibilities for resolution are not imposed.

distinct groups of mediator ‘clusters’ based on self-reported strategies. These four

clusters are described in detail and mediators’ self-defined labels are then correlated
with the four clusters. There is little consistency between the labels mediators give
their approach and the cluster into which they actually fall in the survey. The analysis
of the second study, which involved the observation and coding of actual mediations,
finds that those mediators who were observed to use any directive strategies tended to
use mostly directive strategies and those mediators who were observed to use any
elicitive strategies tended to use mostly elicitive strategies throughout the observed
mediation case. This appears to challenge the notion that mediators may use both
directive and elicitive strategies together in the same mediation. See also Guy Burgess
& Heidi Burgess ‘The beyond intractability knowledge base project’ available at
http://www.beyondintractability.org/codes/link1/link4?page=1401, accessed on 1 Janu-
ary 2015.
59
Steve Lancken & Frank Handy ‘Lawyers and mediation: What’s the right
direction for resolution?’ 2012 Lawyers Weekly available at http://www.lawyers weekly.
com.au/opinion/lawyers-and-mediation-whats-the-right-direction-f, accessed on 27 December
2014. Experience suggests that the role that lawyers play in mediation may be affected by
the stage of the development of the mediation process in a given jurisdiction. In a study of
workplace mediations in Quebec, Canada, where mediation has existed as an option for
some time, mediations conducted with lawyers present were just as likely to be settled as
were those without lawyers present. The presence of lawyers didn’t significantly inhibit
the mediation process or affect the parties’ perceived perceptions of fairness of the process
or how satisfied they were with the outcome. The study concluded that lawyers do not
obstruct agreement in mediation. While the study focused on workplace mediation
rather than commercial mediation, it revealed that as lawyers become more acquainted
with the process and develop an appreciation of their role in it, contrary to conventional
understanding, lawyers do not inhibit the process by adopting adversarial tactics. See Jean
Poitras, Arnaud Stimec & Jean-Francois Roberge ‘The negative impact of attorneys
on mediation outcomes: A myth or reality?’ (2010) 7 Negotiation Journal 9, available
at http://www.pon.harvard.edu/daily/mediation/how-lawyers-affect-mediation/, accessed on
27 December 2014. See Sharon Press ‘Lawyers and mediation: Lessons from mediator
stories’ (2013) 34 Cardozo LR 2433 at 2434. See also Roselle L Wissler ‘When does
familiarity breed content? A study of the role of different forms of ADR education and
experience in attorneys’ ADR recommendations’ (2002) 2 Pepperdine Dispute Resolution
LJ 199.
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For such an approach to be successful, lawyers must look to the future.60 An

essential part of this future-oriented approach is for lawyers accurately to
explain to clients how they practice mediation in order that clients under-
stand how to participate. In order for both lawyers and clients to achieve this
approach it requires a ‘paradigm shift’ in thinking from ‘should’ to ‘could’.61
Customarily, clients instruct counsel or seek legal advice from a lawyer and
expect to be told an answer as to what they should do. This type of
authoritative thinking is seen as being detrimental to mediation. It is
particularly counter-productive as it imposes a decision or course of action
from the outside and does not recognise the subjective experience of those
who will have to live with the settlement long after it has been reached.
Mediation requires a different mindset. An approach that opens the parties’
minds to new and creative forms of problem-solving, together with their
lawyers acting as advisors rather than representatives, seeking a resolution
through the facilitative skills of the mediator.62 This approach of changing
from ‘should’ to ‘could’ can be transformative for the parties and their
lawyers, providing the mediators and the parties’ advisors with the satisfaction
of having fostered co-operation between disputing parties; co-operation that
opens the door to the prospect of healing and growth.63 Experience from
seasoned mediators in the USA has suggested for some time that most
commercial clients want prompt closure on reasonable terms, rather than full
‘victory’ in court or arbitration.64
Ultimately the primary objective of the lawyer representing a client in
mediation is the successful implementation of the client’s overall goals and
objectives.65 Effective engagement in commercial mediation can elicit the
realisation that there is more for clients to achieve in mediation than just a

60
Lancken & Handy ibid.
61
David A Hoffman & Richard N Wolman ‘The psychology of mediation’ (2013)
14 Cordozo J of Conflict Resolution 759 at 783. See generally Thomas Khun The Struc-
ture of Scientific Revolutions (1962).
62
In a survey of 216 lawyers in commercial mediation, the successful mediator’s
ability to gain the confidence of the parties was cited as important to his or her success
more frequently than any of the skills used by the mediator to bring about agreement.
For a discussion of the survey, the means by which mediators gain the confidence of
the disputing parties, the different skill and attribute profiles of different successful
mediators, lawyers’ views of the reasons for mediator failure and the implications of
such findings for lawyers. See Stephen B Goldberg & Margaret L Shaw ‘The secrets of
successful (and unsuccessful) mediators continued: Studies two and three’ (2007) 4
Negotiation Journal 393. See also Dwight Golann Mediation Advocacy; The Role of Law-
yers in Mediation (2013) ADR Centre at 10. See also Spencer & Brogan op cit note 40
at 202–11.
63
Hoffman & Wolman op cit note 61 at 784.
64
See for example Spier op cit note 57.
65
John A Sherrill ‘Ethics for lawyers representing clients in mediation’ available at
http://www.americanjournalofmediation.com/docs/JOHN%20SHERRILL%20-Ethics%
20for%20Lawyers%20Representing%20Clients%20in%20Mediation.pdf, accessed on
27 December 2014. See also Cary Menkel-Meadow ‘Ethics in ADR representation:
A roadmap of critical issues’ Dispute Resolution Magazine (Winter 1997) 2.
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THE ROLE OF THE LAWYER IN THE COMMERCIAL MEDIATION PROCESS 365

settlement. As a seasoned New York based commercial mediator once
commented, the issue is not whether settlement is important in commercial
cases; the issue is whether it is enough.66
In this context, it is important to appreciate that parties will settle for a
variety of reasons that may be unconnected to their perceptions of success at
trial. Issues such as reputation, commercial reality, press publicity, limited
means, risk aversion, litigation aversion, fear of loss of face for participants, or
unconnected commercial considerations such as a planned merger or
promotion, are all motivators to settlement, whether during mediation or
otherwise, often unrevealed to mediators, let alone opponents. Similarly,
mediation ‘success’ is not just about settlement. It is a process through which
information and views previously undisclosed can be exchanged, risks
re-appraised, and strengths and weaknesses tested in a private, confidential
way and in a way that does not jeopardise any party’s pleaded on-the-record
case. Coupled with this is the fact that no one need settle against their will or
against the advice they receive, and that it is open to one party to persuade
the other to withdraw a claim or defence.67
As noted above, mediation can produce results that an arbitrator is unlikely
or unable to award or which a court would or could never decree, such as an
apology from one party to the other68 or the redrafting of a commercial
agreement to take account of changed economic circumstances with a view
to continuing a commercial relationship into the future.69
Lawyers advising clients in commercial mediation should be proactive in
adopting a broad problem-definition frame for what could potentially
happen in mediation. They should then use that frame in preparing clients for
mediation, selecting the mediator and structuring the process. This approach
can provide clients with a sense of closure rather than simply arriving at a
number.70 Disputing parties can consequently reach a voluntary settlement

66
David Geronemus ‘The changing face of commercial mediation’ in CPR Insti-
tute for Dispute Resolution Into the 21st Century: Thought Pieces on Lawyering, Problem
Solving and ADR (2001) 38. See also Nolan-Haley op cit note 3 at 297 and Hardy &
Rundle op cit note 40 at 6–10.
67
Tony Allen ‘Mediations where parties are ‘‘a hundred miles apart’’ ’ (November
2012) CEDR available at http://www.cedr.com/articles/?item=Mediations-where-parties-
are-a-hundred-miles-apart, accessed on 1 January 2015.
68
See Deborah L Levi ‘The role of apology in mediation’ (1997) 72 New York
University LR 1165. See Jonathan R Cohen ‘Advising clients to apologise’ (1999) 72
Southern California LR 1009. See also Nolan-Haley op cit note 3 at 298.
69
See the example of the manufacturer and the technical expert provided by
Antrobus & Sutherland op cit note 5 at 170: following a breach of their agreement,
they engage in commercial mediation which results in a new commercial contract
that better reflects their interests and the economic context in which they find them-
selves three years after the initial agreement was reached. For a discussion on the
impact of the global financial crisis on commercial contractual compliance and the
need for mediated alternates to provide creative solutions that are adapted to the
interests of the parties, see World Bank Group op cit note 5 at 4.
70
See Press op cit note 59 at 2434 and 2442. Other approaches have also been
shown to work, such as cases in the US where lawyers elected not to submit a
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that defines their future behaviour, through a process where they can exert
maximum control to resolve their dispute in an informal, confidential,
collaborative, problem-solving atmosphere, with the opportunity to focus
on and resolve root causes of the conflict that are not framed by the
pleadings.71

III COMMERCIAL MEDIATION AND THE DUTIES OF

LAWYERS
While the legal duties of lawyers in relation to mediation have not been
comprehensively determined in South Africa,72 in light of the discussion
above, it would seem to make commercial sense for a lawyer to recommend
mediation in appropriate cases. In South Africa, this matter is in part
regulated by the normal professional requirements of lawyers towards their
clients.73 The position seems to be that there is a duty to inform clients about
the settlement option even where the attorney believes the offer should be
rejected.74
Where a client’s case can be reasonably settled, clients should be advised
and encouraged to settle rather than to commence or continue proceed-
ings.75 There is currently no formal duty on lawyers to advise on mediation as
a means of settlement.76 It seems that only a small proportion of South
African commercial lawyers routinely advise clients on the mediation
option.77

pre-mediation brief in order to facilitate the client telling the story rather than the
lawyer doing so.
71
Hon Morton Denlow ‘Mediation tips for trial lawyers and their clients’ 2013
ADR Guide available at http://www.jamsadr.com/files/Uploads/Documents/Articles/
Denlow-Mediation-Tips-2013-01-01.pdf, accessed on 27 December 2014.
72
See G Sammon ‘The ethical duties of lawyers who act for parties to a mediation’
(1993)(4) 3 ADRJ 190 as cited in Laurence Boulle & Alan Rycroft Mediation: Prin-
ciples, Process, Practice (1997) 252.
73
Boulle & Rycroft ibid. For a discussion on the evolving nature of professional
obligations of lawyers in connection with mediation generally, see Hardy & Rundle
op cit note 40 at 207–60.
74
E A L Lewis Legal Ethics: A Guide for Professional Conduct for South African Attorneys
(1982) 162 as cited by Boulle & Rycroft ibid.
75
Lewis ibid at 161 as cited by Boulle & Rycroft ibid.
76
Boulle & Rycroft ibid.
77
Ibid. One of the primary initial reasons for the opposition to mediation where it
has ultimately emerged and become established as a viable alternative to litigation and
arbitration is the concern among practitioners that a source of income will be reduced
if parties mediate rather than litigate. Experience suggests that while the income to
the practitioner may initially be reduced, a professional approach and attitude to the
evolution of mediation can offset this and also be greatly beneficial as disputes will be
settled at an earlier stage, improving cash-flow for practitioners and increasing client
satisfaction, which in itself is likely to lead to repeat client business. See Mediate
Ireland ‘Resolving disputes quickly and cost effectively. What mediation will mean
in practice and for your practice’ available at http://mediateireland.com/category/
commercial-financial-mediation, accessed on 27 December 2014. See also World Bank
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THE ROLE OF THE LAWYER IN THE COMMERCIAL MEDIATION PROCESS 367

(a) Legal advisers at mediation
The presence of legal advisers at a mediation of commercial disputes in South
Africa seems to depend on the size and nature of the dispute. The larger the
corporate party involved and the larger the amount in dispute, the more
likely it is that legal advisors will be present. The presence of lawyers at
mediation has drawn a mixed response from mediators. Generally, lawyers
can prove helpful in identifying and distilling the issues in dispute where they
engage in the process. However, where there is a lack of understanding of the
rationale for the mediation, lawyers can prove obstructive.78
As mediation is an informal meeting between parties in a non-legal
context, the parties should be free to exchange views regarding the issues and
possible solutions, and legal advisers should take such part in the process as
their clients wish.79 As noted above, lawyers in a mediation are not present as
advocates. They are present as legal advisers rather than legal representatives.
Lawyers who do not understand and appreciate this distinction can prove to
be a direct impediment to the mediation process.80 The rationale for the
involvement of legal advisers and their consequent duties when the process
has commenced can be seen as threefold:81
• to advise and assist their clients during the mediation;
• to discuss with the mediator, with each other and with their respective
clients the legal, evidentiary and/or practical matters that arise; and
• to prepare the mediated settlement agreement or heads of agreement
recording the agreement reached at the end of the mediation.

(b) Process champions

Lawyers can use the structure of the commercial mediation process and the
special powers of mediators to achieve their clients’ goals. Traditionally,
lawyers have seen mediation as a method to facilitate competitive bargaining.
From this perspective, a mediator’s primary duty was to carry offers between
the parties and shield them from the impact of each other’s hard tactics.
When such bargaining breaks down, the mediator was expected to opine to

Group op cit note 5 at 7. For a detailed discussion of lawyer resistance to mediation

see Clark op cit note 4 at 29–64.
78
Similar to the experience in other jurisdictions, as mediation becomes more
popular and lawyers become more familiar with it, this is likely to become less of a
problem. See Spencer & Brogan op cit note 40 at 125–31.
79
Sir Laurence Street ‘Commentary on some aspects of the advent and practice of
mediation in Australia’ in Christopher Newmark & Anthony Monaghan (eds) Media-
tors on Meditation: Leading Mediator Perspectives on the Practice of Commercial Mediation
(2005) 367. Some commentators have questioned whether it is always appropriate for
lawyers to attend the mediation session at all, see for example Geetha Ravindra ‘Roles
of attorneys in mediation process’ available at http://www.americanbar.org/content/dam/
aba/migrated/2011_build/dispute_resolution/role_of_attorney_in_mediation_process.
authcheckdam.pdf, accessed on 27 December 2014.
80
Street ibid.
81
Ibid.
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each side about their legal arguments and possibly propose terms of
settlement. Such an approach does not take full advantage of what a mediator
can do. Mediators have power in so far as they influence the process of
bargaining. Effective mediators have been described as being like chessboard
knights. They have many capabilities and lawyers can use them to advance
their clients’ goals and enhance their ability to negotiate in many ways. A
mediator can, for example, improve communication between parties by
conveying messages or explaining what an offer means, provide information
about the attitude of an opponent, and can arrange informal discussions.82
One of the mediators roles is to assist parties negotiate effectively; they are at
their most effective when they work together with parties’ lawyers in
managing their client’s expectations.83
Lawyers can use mediation to pursue competitive and co-operative
negotiation strategies simultaneously. For example, a lawyer can make an
extreme opening offer in mediation with less risk than if the same tactic was
employed in direct bargaining because the mediator can cushion the impact
of the tactic. Lawyers can also use mediation to support creative approaches.
For example, a lawyer can press a claim for money while privately asking the
mediator to explore whether the other side is open to repairing and
preserving a business relationship with a view to future co-operation.84
At various stages of the process, but most notably towards the end of the
process, a lawyer is likely to find himself in a three-sided negotiation,
negotiating with the other party and with the mediator. Lawyers can
negotiate, for example, about whether the mediator uses a specific technique
or can request that the mediator use a particular tactic to assist the process to
conclude with an agreement. While lawyers cannot expect a mediator to take
sides in a dispute, if a tactic is neutral, the mediator can follow a lawyer’s
suggestion to use it. It is suggested that lawyers should not approach the
process passively, but use the mediation process in an active way to advance
their clients’ interests. Experience of the process in Europe, Asia and North
America suggests that such an active approach by lawyers can achieve an
optimal outcome for clients.85
(c) Model rules
The American Bar Association (‘ABA’) Model Rules of Professional Con-
duct (the ‘Model Rules’), are a set of rules that prescribe baseline standards of
legal ethics and professional responsibility for lawyers in the USA. Originally

82
Golann op cit note 62 at 5. See also Tony Allen ‘Keeping it neutral’ (February
2012) New Law Journal 220.
83
James South ‘The final frontier to settlement: How lawyers can make the differ-
ence in the negotiation phase of mediation’ (April 2014) CEDR available at
http://www.cedr.com/articles/?item=The-final-frontier-to-settlement-how-lawyers-can-make-
the-difference-in-the-negotiation-phase-of-mediation, accessed on 1 January 2015.
84
Golann op cit note 62 at 5. See also Hardy & Rundle op cit note 40 at 6–10.
85
For practical examples of the application of such techniques and tactics in com-
mercial practice, see Golann ibid at 22–35.
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published in 1983, the rules are merely recommendations or models and are
not themselves binding. However, having a common set of Model Rules
facilitates a common discourse on legal ethics and simplifies professional
responsibility training as well as the day-to-day application of such rules. To
date, California is the only state in the USA that does not have professional
conduct rules that follow the format of the Model Rules.86
The Preamble to the Model Rules notes the various functions that an
attorney assumes. These functions include the obligation as an advocate to
‘zealously [assert] the client’s position under the rules of the adversary
system’, as well as the lawyer’s duty as a negotiator to seek ‘a result
advantageous to the client but consistent with requirements of honest dealing
with others’. 87 The acknowledgement within the Model Rules of the
multiple roles that an attorney performs supports the proposition that the
Model Rules are intended to apply to lawyers representing clients in
mediation as well as in adversarial settings.88
Rule 1.2 of the Model Rules (‘Scope of representation’) states:
‘(a) A lawyer shall abide by a client’s decisions concerning the objectives of
representation . . . and shall consult with the client as to the means by
which they are to be pursued. A lawyer shall abide by a client’s decision
whether to accept an offer of settlement of a matter.’89
The rule applies to representation in business transactions, mediation or
litigation. Consequently, a client often may play a bigger role in the
mediation process than he or she might assume in a business transaction or in
the trial of a case. It is also up to the client to describe the objectives of
representation, which may range from complete vindication to preserving a
continuing business relationship with the other party. In all cases, the
objectives and means of representation should be defined through consulta-
tion between lawyer and client, with the client, armed with the relevant
information, including legal advice, deciding whether he or she wants to
enter into mediation in the first place as well as deciding whether to accept an
offer of settlement that arises during the course of a mediation.90
Rule 1.4 of the Model Rules (‘Communication’) obliges the lawyer to
explain the matter ‘to the extent reasonably necessary to permit the client to
make an informed decision’.91 Rule 2.1 (‘Advisor’) requires that the attorney
deliver this advice in a candid manner and ‘not be deterred . . . by the
prospect that the advice might be unpalatable to the client’.92
The South African legal professional bodies should adopt a code requiring

86
http://www.americanbar.org/groups/professional_responsibility/publications/model_
rules_of_professional_conduct.html, accessed on 27 December 2014.
87
Ibid.
88
Sherrill op cit note 65.
89
Op cit note 86.
90
Sherrill op cit note 65.
91
Op cit note 86.
92
Ibid.
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370 (2016) 133 THE SOUTH AFRICAN LAW JOURNAL

practitioners to consider mediation when advising disputing clients. The

Model Rules should serve as a guide. It would be best to maintain the rules as
a code rather than a statute so that the code could operate as an organic
instrument, adapting to the changing needs of the process and the lawyer’s
role within it. If adopted in the way proposed, the code could serve as a guide
to courts when assessing a lawyer’s duties toward disputing clients with
regard to advising on the mediation option.

(d) Good faith

There is no independent requirement of good faith in South African contract
law, but this does not mean that bad faith will be condoned.93 It has been
suggested for some time that a good faith requirement in mediation should
be imposed by rule or statute.94 Apart from the unenviable challenge of
attempting to define good faith, such efforts to legislate for this area would
prove difficult in light of the protection provided by mediation confidential-
ity.
The Model Rules could act as a guide to remedying the legal lacuna in this
regard. They could form part of the code adopted by the South African legal
professional bodies proposed above. Rule 4.1 of the Model Rules (‘Truthful-
ness in statements to others’) in the relevant part states:
‘In the course of representing a client a lawyer shall not knowingly:
(a) make a false statement of material fact or law to a third person; or
(b) fail to disclose a material fact to a third person when disclosure is necessary
to avoid assisting a criminal or fraudulent act by a client.″95
This provision in the above-proposed code for South African legal
practitioners could act as a baseline standard of good faith with regard to
lawyer involvement in the commercial mediation process.

IV THE LEGAL LIABILITY OF LAWYERS IN MEDIATION

(a) An obligation to advise of the mediation option
Commentators have remarked for some time that it would be foolish to
exclude the possibility of lawyers being sued for negligently failing to advise

93
See Andrew Hutchison ‘Agreements to agree: Can there ever be an enforceable
duty to negotiate in good faith?’(2011) 128 SALJ 273 at 281 and 295. See also
Barkhuizen v Napier 2007 (5) SA 323 (CC) paras 69–70. In South Africa, damages for
negotiation in bad faith have not yet been established. The Supreme Court of Appeal
has ruled that a contractual clause requiring that parties negotiate in good faith is
enforceable, provided that it is accompanied by a deadlock breaking provision, such
as an arbitration clause. See Southernport Developments (Pty) Ltd v Transnet Ltd 2005 (2)
SA 202 (SCA) para 17. See also Alan Rycroft ‘The duty to bargain in good faith’
(1988) 9 ILJ 202 at 204.
94
Sherrill op cit note 65. See also Kimberlee K Kovach ‘Lawyer ethics in media-
tion: Time for a requirement of good faith’ (Winter 1997) Dispute Resolution Magazine
5.
95
Op cit note 86.
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THE ROLE OF THE LAWYER IN THE COMMERCIAL MEDIATION PROCESS 371

clients on the mediation option.96 In a book on legal ethics, Ross leaves the
question whether a lawyer is obliged to advise clients about alternative
dispute resolution options unanswered.97 Lawyers would not seem to be
responsible for mere errors of judgment regarding issues of law and
discretion, unless no reasonably informed and competent member of the
profession should have made such judgment.98 It has also been suggested that
as people became more informed about mediation, the likelihood would
increase that a lawyer who fails to advise his or her client about it would be
held liable.99
If mediation amounts to a ‘remedy’, then lawyers could be negligent if
they fail to advise on the option.100 It is arguable that in circumstances where
a lawyer, well acquainted with ADR processes, believes mediation is the
most appropriate form of conflict management, his or her client should be
comprehensively advised about this option, even where there is initial client
reluctance.101 While changing judicial policy in other jurisdictions can act as
a guide for possible developments in this area,102 it is premature to predict the
extent of a lawyer’s legal duties regarding mediation in South Africa.103

96
See G Sammon ‘Ethical duties of lawyers who act for parties to a mediation’
(1993) 4 ADRJ 190 at 195, as cited by Laurence Boulle Mediation: Principles, Process,
Practice (2005) 569. See also G Robertson ‘The lawyer’s role in commercial ADR’
(1987) 61 ILJ 1148, who remarked over twenty years ago: ‘It is now incumbent on
the lawyer to stop shopping just in the corner shop where only litigation is available,
and to take clients through the shopping centres, where a whole range of ADR
techniques is available.’
97
S Ross Ethics in Law — Lawyers’ Responsibility and Accountability in Australia
(2001) 343–4 as cited in Boulle & Rycroft ibid at 253.
98
Ross ibid at 194–5 as cited in Boulle & Rycroft ibid at 253.
99
Boulle & Rycroft ibid.
100
Ibid.
101
Ibid. One remark made by H H J Waksman in Garritt-Critchley v Andrew Ronnan
and Solarpower PV Ltd [2014] EWHC 1774 (Ch) is very telling of the attitude of the
judiciary in England towards the parties’ view of the likelihood of success as a factor in
deciding to mediate a dispute, of which legal advisors should be aware. In dealing
with the assertion that the parties were too far apart for it to be worthwhile to
mediate, he said: ‘[P]arties don’t know whether in truth they are too far apart unless
they sit down and explore settlement’. For a discussion of the case see Tony Allen
‘Hugely significant costs sanction for refusal to mediate’ (June 2014) CEDR available
at http://www.cedr.com/articles/?item=A-hugely-significant-costs-sanction-for-refusal-to-
mediate, accessed on 1 January 2015. See also Swain Mason v Mills & Reeve [2012]
EWCA Civ 498. See also Tony Allen ‘Refusing to mediate: Halsey applied again’
(October 2014) CEDR available at http://www.cedr.com/articles/?item=Refusing-to-
Mediate-Halsey-applied-again, accessed on 1 January 2015.
102
In the Australian case Caboolture Park Shopping Centre Pty Ltd (in liq) v White
Industries (Qld) Pty Ltd (1994) 117 ALR 25, the Full Court of the Federal Court said it
could order a solicitors’ firm to cover the other side’s costs after they had advised their
client to pursue litigation as a delaying tactic, even though they were aware that there
was little prospect of success.
103
Boulle & Rycroft ibid at 253. See also Spencer & Brogan op cit note 40 at
454–9.
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(b) Experience elsewhere

English case law offers a word of warning for practitioners in light of the
growth of mediation. The current view among many practitioners in
England, particularly at the bar, is that a failure to advise or at least explore
with clients the option to refer a dispute to mediation could amount to
professional negligence. While that may not reflect the current legal position
in South Africa, as commercial mediation increasingly becomes a viable
alternative, practitioners who routinely reject requests to mediate on behalf
of clients without clearly discussing the option with them or taking their
detailed instructions, at best may be open to uncomfortable questions from
their clients if adverse costs orders are made in the case.
It has been suggested that in light of case law from England, two dicta
about mediation should be on every litigator’s desk.104 The first is that ‘[a]ll
members of the legal profession who conduct litigation should now routinely
consider with their clients whether their disputes are suitable for ADR’.105
The second warns that ‘[t]he profession can no longer with impunity shrug
aside reasonable requests to mediate’.106
In the USA, Federal District Courts expect attorneys to be knowledgeable
about mediation in general and about the courts’ programmes in particular.
The local rules of many courts now require attorneys to discuss mediation
with their clients and opponents, to address in their case management plan
the appropriateness of mediation for the case, and to be prepared to discuss
mediation with the judge at the initial scheduling conference. These rules
indicate the extent to which the courts expect attorneys to work with the
judge to determine whether mediation should be used in a case. The
attorneys’ and judge’s responsibilities merge at the initial case management
conference, which in many courts has become the critical event, or the first
of several, in determining how and when mediation will be used in the
case.107

104
John Gilbert ‘Mediation’ Law Society Gazette (England) 2 June 2005.
105
Halsey v Milton Keynes NHS Trust [2004] EWCA (Civ) 576 para 11.
106
Burchell v Bullard [2005] EWCA Civ 358 para 43. Similarly, in other jurisdic-
tions, cost orders can be used to penalise parties where they or their lawyers fail
to participate reasonably and co-operatively in the mediation process, see Ronán
Feehily ‘Costs sanctions; the critical instrument in the development of commercial
mediation in South Africa’ (2009) 26 SALJ 291.
107
Elizabeth Plapinger & Donna Stienstra ADR and Settlement in the Federal District
Courts: A Sourcebook for Judges and Lawyers (1996). See also World Bank Group op cit
note 5 at 7. South Africa is currently piloting a court annexed mediation scheme. The
implementation of court-annexed mediation at pilot site courts started on 1 Decem-
ber 2014 at certain sites in Gauteng and North West. It is expected that it will be
rolled out to further pilot sites at a later stage. See http://www.lssa.org.za/?q=
con,338,Court-annexed%20mediation, accessed on 22 February 2015. It seems how-
ever that the government has made a policy decision not to introduce mandatory
mediation at this stage, opting instead for voluntary court referred mediation. See
Government Notice R183, available at http://www.justice.gov.za/legislation/notices/
2014/2014-03-18-gg37448_rg10151_gon183-rules-mc.pdf, accessed on 23 February
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THE ROLE OF THE LAWYER IN THE COMMERCIAL MEDIATION PROCESS 373

(c) The lawyer’s criteria to consider
In the conjoined cases of Halsey v Milton Keynes NHS Trust and Steel v Joy and
Halliday,108 the English Court of Appeal dismissed the two appeals against
costs awarded in favour of successful claimants who had refused to mediate.
Dyson LJ held that the burden was on the unsuccessful party seeking a costs
sanction against the successful litigant to show why there should be a
departure from the general rule that costs should follow the event. Such a
departure was not justified unless it was shown that the successful party had
acted unreasonably in refusing to mediate. The Court of Appeal gave a
non-exhaustive checklist of factors that may be relevant to the issue of
whether a party unreasonably refused to mediate as follows:109

2015. The new Magistrates’ Courts Rules provide the procedure for the voluntary
submission of civil disputes to mediation in selected courts. These rules apply to the
voluntary submission by parties to mediation of disputes prior to commencement of
litigation and to certain disputes in litigation which has already commenced, available
at file:///C:/Users/R730A~1.FEE/AppData/Local/Temp/new%20rules%20on%
20mediation.htm, accessed on 23 February 2015. Some may argue that it is sensible for
the government to opt for a voluntary scheme, with consideration of mandatory
mediation at a later stage when the process is better understood and has developed as a
viable alternative to the court process and arbitration as a means of resolving
commercial disputes. See Deborah R Hensler ‘Our courts, ourselves: How the
Alternative Dispute Resolution movement is re-shaping our legal system’ (2003) 108
Penn State LR 188; Harry Edwards ‘Alternative Dispute Resolution: Panacea or
anathema?’ (1986) 99 Harvard LR 668; Judith Resnik ‘Due process: A public
dimension’ (1987) 39 U Fla LR 405; Judith Resnik ‘Many doors? Closing doors?
Alternative Dispute Resolution and adjudication’ (1995) 10 Ohio St J on Dispute
Resolution 212. However, experience from other jurisdictions suggests that there
must be a degree of compulsion imposed on disputing parties at least to consider the
process, with a reasonable refusal to mediate being an acceptable response in relevant
cases. The author has contended previously that commercial mediation is unlikely to
become a prominent form of dispute resolution in South Africa until heavy costs
penalties are deployed by the courts. See Feehily op cit note 106. The 2011 draft of
the Magistrates Courts Rules included a provision that an adverse costs’ sanction
could be employed by the courts against a litigant who unreasonably refuses to
mediate in appropriate circumstances. The omission of this provision in the final
version of the rules has been appropriately described as a lost opportunity to develop a
culture that obligates parties to consider mediation and to justify a refusal to
participate. See Alan Rycroft ‘What should the consequences be of an unreasonable
refusal to participate in ADR?’ (2014) 131 SALJ 778 at 785. While court referred
mediation schemes are not the focus of this article (and it would in any event be
premature to engage in an assessment of the success of the scheme), for a useful
discussion and comprehensive critique of the new rules, see Tony Allen ‘A discussion
of the new mediation provisions in the South African Magistrates Courts Rules’
available at http://www.conflictdynamics.co.za/SiteFiles/205/Discussion%20of%20SA%
20CAMR%202014.pdf, accessed on 2 January 2015.
108
[2004] EWCA (Civ) 576.
109
See also Kent Dreadon ‘Mediation, English Developments in an international
context’ IBA Legal Practice Division Mediation Committee Newsletter (April 2005) at
16. See also the decision in P4 Ltd v Unite Integrated Solutions plc [2006] EWHC TCC
2924, where the court was careful to apply the Halsey framework to the issues in that
case.
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• the nature of the dispute;

• the merits of the case;
• the extent to which other settlement methods were attempted;
• whether the costs involved in the mediation would have been dispropor-
tionately high;
• whether any delay in setting up and attending the mediation would have
been prejudicial; and
• whether the mediation had a reasonable prospect of success.
Halsey110 was initially criticised for not going far enough in encouraging
parties to mediate and that, as a result of Halsey, courts in England would be
more reluctant to impose costs sanctions.111 Subsequent cases have proven
otherwise.112
The case of Burchell v Bullard113 is seen as one of the most important and
meaningful judgments to have been handed down since Halsey. While the
Court of Appeal declined to make an adverse costs order, due in part to the
fact that the offer to mediate pre-dated the decision in Halsey, Ward LJ
confirmed that if this matter were to arise now, there would be no hesitation
in making an adverse costs order. Similar to the conjoined appeals of Halsey
and Steel v Joy,114 Burchell v Bullard115 only involved inter-party offers to
mediate.
This case involved a small building dispute between a builder, Mr Burchell
and Mr and Mrs Bullard. In May 2001, before commencing proceedings, Mr
Burchell’s solicitor wrote to the Bullards suggesting that the dispute be
referred to mediation. The Bullards’ building surveyor replied that the issues
in dispute were technically complex and therefore, that mediation was not an
appropriate means of resolving them.
In February 2002, Mr Burchell issued proceedings against the Bullards
claiming £18 318.45. The Bullards counterclaimed for more than
£100 000. In May 2003, Mr Burchell commenced another claim against the

110
Supra note 108.
111
See Antony Dutton & Daniel Perera ‘Mediation as a cost-containment device in
the English Courts: Litigation becomes the ‘‘last resort’’ in dispute resolution’ IBA
Legal Practice Division Mediation Committee Newsletter (September 2006) 32. See also
Lara Clarke ‘Mediation in the post-Halsey era’ IBA Legal Practice Division Mediation
Committee Newsletter (August 2005) 17–18.
112
For a detailed discussion of this case, subsequent cases following this precedent
and the issues relating to conduct, confidentiality and costs generally, see Feehily op
cit note 106. See also the recent English case of Northrop Grumman Mission Systems
Europe Ltd v BAE Systems (Al Dariyah C41) Ltd) [2014] EWHC 3148 (TCC), where
the Halsey criteria were applied.
113
[2005] EWCA Civ 358. For a further discussion of this case see Clarke op cit
note 112 at 17–19.
114
Supra note 108.
115
Supra note 113.
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THE ROLE OF THE LAWYER IN THE COMMERCIAL MEDIATION PROCESS 375

roofing subcontractor.116 There were no payments made into court and no
offers were made under Part 36 of the Civil Procedure Rules.117
Judgment was handed down in favour of Mr Burchell on his claim for the
amount of £18 327.04 plus costs, and the Bullards received £14 373.15 plus
costs on their counterclaim. The Bullards effectively had to pay Mr Burchell
the difference plus interest and VAT, equalling £5 025.63. Mr Burchell was
also awarded £79.50 on his claim against the roofing subcontractor, but was
ordered to pay the roofing subcontractor’s costs because the roofing
subcontractor only had £79.50 awarded against him and had made offers to
settle from the beginning.
Prior to appealing the costs award, Mr Burchell’s offer to mediate the issue
of costs under the Court of Appeal scheme was declined.118 On the issue of
costs, the Court of Appeal found that the judge’s approach was flawed in that
he did not consider the alternatives available to him to the general rule that
costs follow the event. The court also expressed horror at the disproportion-
ate level of costs relative to the damages.
The following factors influenced the Court of Appeal’s judgment:119
• Mr Burchell’s honest and unexaggerated claim;
• the conduct of the Bullards’ expert and the exaggerated ‘kitchen sink’
type counterclaim;120
• the unreasonable behaviour of the Bullards during the litigation; and
• the failure of the Bullards to make an offer to settle or make a payment
into court.
However, it was the Bullards’ refusal to mediate that was most strongly
criticised by the Court of Appeal.121 Taking the Halsey approach, Ward LJ
accepted that the onus, stated by Dyson LJ in Halsey to be ‘not an unduly
onerous burden to discharge’,122 is on the party seeking a sanction to show
that it should be imposed. Ward LJ considered the Bullards’ conduct in light
of the Halsey guidelines as follows:123
• The nature of the dispute:

116
Under Part 20 of the English Civil Procedure Rules (‘CPR’) which deals with
counterclaims and other additional claims.
117
Part 36 of the CPR deals with offers to settle.
118
At no stage did a judge order or recommend that mediation be attempted, even
at the appeal permission stage, and the principal offer of mediation was made before
issue, when judges in England have no jurisdiction to make an ADR order at all. See
Clarke op cit note 112 at 19.
119
See also Clarke ibid at 19.
120
Under part 44.3(5)(d) of the CPR, this is a relevant consideration when exercis-
ing discretion regarding costs.
121
As noted previously, parties who refuse to mediate or negotiate and then effec-
tively lose are usually penalised now in England by being ordered to pay indemnity
costs, see Virani v Manuel Revert and Painting v Oxford University [2005] EWCA Civ
161. See also Clarke op cit note 112 at 19.
122
Op cit note 108 para 28.
123
See Clarke op cit note 112 at 19.
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376 (2016) 133 THE SOUTH AFRICAN LAW JOURNAL

‘A small building dispute is par excellence the kind of dispute which . . . lends
itself to ADR.’124
• The merits of the case:
‘The merits of the case favoured mediation. The defendants behaved
unreasonably in believing, if they did, that their case was so watertight that
they need not engage in attempts to settle. . . . The stated reason for
refusing mediation that the matter was too complex for mediation is plain
nonsense.’125
• Whether the costs of ADR would be disproportionately high:
‘The costs of ADR would have been a drop in the ocean compared with
the fortune that has been spent on this litigation.’126
• Whether the ADR had a reasonable prospect of success:
‘The way in which the claimant modestly presented his claim and readily
admitted many of the defects, allied with the finding that he was
transparently honest and more than ready to admit where he was wrong
and to shoulder responsibility for it augured well for mediation. The
claimant has satisfied me that mediation would have had a reasonable
prospect of success. The defendants cannot rely on their own obstinacy to
assert that mediation had no reasonable prospect of success.’127
As mentioned, despite the fact that Mr Burchell discharged his burden of
persuasion in showing the court that the Bullards’ refusal to mediate was
unreasonable, the offer to mediate was made in May 2001, prior to the
decisions in Halsey.128 The Court of Appeal therefore felt that the reasonable-
ness of the Bullards’ actions had to be judged against the background of
practice at the time the offer was made. While the Court of Appeal did not
impose any additional sanction on the Bullards for their refusal to mediate,
the appeal decision was still quite severe.
Mr Burchell was awarded 60 per cent of the global costs of his claim and
the counterclaim. The Bullards were ordered to pay to Mr Burchell 60 per
cent of the costs that Mr Burchell was liable to pay to the roofing
subcontractor. The global costs were £185 000, described by the court, in
view of the fact that the original judgement amounted to just over £5000, as
‘an horrific picture’.129 As the Bullards’ net loss was more than £130 000 and

124
Supra note 113 para 41.
125
Ibid.
126
Ibid. See also the comments of the court in the subsequent English case Egan v
Motor Services (Bath) Ltd [2007] EWCA Civ 1002 para 53 where £100 000 was spent
in costs on a claim worth £6000, and Ward LJ described the parties as ‘ ‘‘completely
cuckoo’’ to have engaged in such expensive litigation with so little at stake’, and
proceeded to say that it was a ‘case that cries out for mediation’.
127
Supra note 113 para 41. See also the more recent case of Palfrey v Wilson [2007]
EWCA Civ 94, where the Court of Appeal refused to give costs relief to an intransi-
gent litigant (who had suggested mediation but) who failed to have a realistic assess-
ment of success.
128
Supra note 108.
129
Supra note 113 para 23.
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THE ROLE OF THE LAWYER IN THE COMMERCIAL MEDIATION PROCESS 377

Mr Burchell’s loss was about £30 000, the net outcomes were almost exactly
reversed by the appeal, even without any sanction for the refusal to
mediate.130
The Court of Appeal stressed that the legal profession in England must
now take note of Halsey and can no longer dismiss reasonable requests to
mediate with impunity:
‘Halsey has made plain not only the high rate of a successful outcome being
achieved by mediation but it is now the legal profession which must become
fully aware of and acknowledge its value. The profession can no longer with
impunity shrug aside reasonable requests to mediate. The parties cannot ignore
a proper request to mediate simply because it was made before the claim was
issued. With court fees escalating, it may be folly to do so. . . . These defendants
have escaped the imposition of a costs sanction in this case but defendants in a
like position in the future can expect little sympathy if they blithely battle on
regardless of the alternatives.’131
It has been remarked that Burchell v Bullard has illustrated that the English
courts, by applying the Halsey guidelines, have further endorsed the use of
mediation and ensured that all members of the legal profession who conduct
litigation should now routinely discuss with their clients whether their
disputes are suitable for mediation.132 Halsey and subsequent cases highlight
the importance the court places on parties considering mediation while also
providing lawyers in England with valuable clarification on the objective
criteria that should be considered when analysing the suitability of the
process in a particular context. However, legal advisors must remain mindful
that if a refusal to mediate is decided on the wrong criteria, or if the above
criteria are applied to the particular context of a case but the court reaches a
different conclusion, adverse cost consequences may follow.
Halsey, and the continuing jurisprudence that followed, has had the
practical effect of making it unwise for a party to ignore, or for their lawyer to
advise against accepting a good-faith invitation to mediate, unless there are
clear and demonstrable reasons to decline the invitation. If a lawyer believes
that mediation is inappropriate, he or she should say so in writing, elucidating
the reasons fully, mindful of the fact that it is likely to be reviewed by a judge
at a later date. The Halsey jurisprudence has also underlined an important
distinction for the advisor; that unreasonableness demonstrated in declining
to mediate can give rise to a sanction, but unreasonableness which is alleged
to have occurred within a mediation is not admissible later due to confidenti-
ality constraints. Unless parties can feel safe within the evidentially secure

130
See also Clarke op cit note 112 at 19.
131
Supra note 114 para 43. Rix LJ also stated that it ‘is entitled to take an unreason-
able refusal into account, even when it occurs before the start of formal proceedings;
see rule 44.3(5)(a) of the Civil Procedure Rules 1998’ (para 50). Rule 44.3(5) states
that the conduct of the parties includes conduct before, as well as during, the pro-
ceedings (and in particular the extent to which the parties followed any relevant
pre-action protocol).
132
See Clarke op cit note 112 at 19.
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environment created by a mediation agreement, they will be unlikely to

move from their positions. It is only in cases where both parties agree to
disclose attitudes taken within a mediation that the court can have the right
to adjudicate on such matters.133 In the event that the courts in South Africa
were to follow the Halsey approach, for a party in a dispute that is subject to
an existing agreement to mediate, it is critical that the court in a subsequent
action dealing with the dispute is equipped with the necessary power to
excuse them if they (or their advisors) can show that mediation would have
been unreasonable in the circumstances. Such a rule would give some
assistance to parties and their lawyers who have a genuine reason to avoid
mediation. Examples of such cases might be where a party needs to have a
legal point determined, or where unreasonable behaviour by the other side
can be shown, but would otherwise not deter the development of a
mediation culture.

(d) Negligence in a settlement context

There would seem to be two grounds on which claims of negligence in a
mediation settlement context may be made against a legal representative.134
The first is where it is alleged that the legal representative negligently advised
a client to accept a settlement.135 Assessments made by lawyers when advising
clients during a settlement are very subjective and courts are understandably
reluctant to review such assessments. As the courts in England have put it,
‘[s]ettlements are to be encouraged as a matter of policy so it would be a
discouragement if a party had to justify them in detail’.136
There is only likely to be judicial intervention where it can be seen that the

133
Earl of Malmesbury v Strutt and Parker [2008] EWHC QB 4240. See also Tony
Allen ‘Don’t ignore a request to mediate’ (March 2012) CEDR available at http://
www.cedr.com/articles/?item=Don-t-ignore-a-request-to-mediate, accessed on 1 January
2014. See also Tony Allen ‘Halsey applied! A note on PGF II SA v OMFS Company
[2012] EWHC 83 (TCC)’ (March 2012) CEDR available at http://www.cedr.com/
articles/?item=Don-t-ignore-a-request-to-mediate, accessed on 1 January 2015. For a dis-
cussion on PGF II SA v OMFS Company supra and its relevance to South Africa, see
Rycroft op cit note 107. However, where a party is reluctant to engage in the process
due to fears of unreasonable behaviour by the other party, which will be protected by
mediation confidentiality, experience from England would seem to suggest that few
inherently unreasonable parties restrain their unreasonableness to circumstances
where mediation confidentiality restricts judicial access to what transpired at the
mediation. Consequently, there may be sufficient evidence of unreasonable conduct
available to a court without the need to intrude into the confidentiality of the media-
tion. See Tony Allen ‘Peering behind the veil of mediation confidentiality, a new
judicial move in Mulmesbury v Strutt and Parker’ available at www.cedr.com/index.php?
location=/library/articles/20080421_234.htm, accessed on 1 January 2014. See also
Feehily op cit note 106 at 310.
134
Laurence Boulle & Miryana Nesic Mediation: Principles, Process, Practice (2001)
526.
135
Biggin & Co Ltd v Permanite Ltd [1951] 2 KB 314, as cited by Boulle & Nesic ibid.
136
J Sainsbury plc v Broadway Malyan (a firm) (1998) 61 Con LR 31, High Court; and
DSL Group Ltd v Unisys International Services Ltd (1994) 41 Con LR 33 at 39–43.
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THE ROLE OF THE LAWYER IN THE COMMERCIAL MEDIATION PROCESS 379

view that the lawyer took was one that, in the circumstances, no reasonable
lawyer could have taken.137 In the Australian case of Studer v Boettcher,138 a
client claimed that his solicitor failed to make a proper assessment of the
respective cases and, in turn, negligently advised him to settle at mediation.
On the evidence, the court found that the client made the decision to settle
even if he did not like it. The case illustrates that the involvement of an
experienced mediator does not ensure that a mediated settlement agreement
will not subsequently be challenged. Mediators must ensure that parties
consent on an informed basis to mediated settlement agreements.139
The second ground upon which a claim of negligence may be made
against a legal representative in the context of a settlement at mediation is
where there is an allegation that he or she negligently failed to achieve
settlement.140 This relates in part to causation and where is it alleged that the
lawyer’s negligence consists of an omission to achieve settlement, what the
client would have done had the lawyer recommended settlement would
have to be considered. This is a matter of inference to be assessed from all of
the circumstances and could be difficult to prove.141
Another issue is the extent to which a lawyer has a duty to persuade
reluctant clients of the advantages of a settlement.142 In Studer v Boettcher,143
although the specific issue did not need to be determined, Young J
commented that he believed it is appropriate for solicitors to put pressure on
clients to do what is, in the lawyer’s view, in the clients’ own interest. He did
caution however, that there may be circumstances in which a solicitor should
know that he or she should not proceed, at least not before an independent
person speaks to the client to ensure that the client understands the issues. As
Boulle & Nesic point out, the need for a ‘paternalistic’-type approach may be
greater when dealing with an inexperienced client who has an expectation
that their attorney will take a broader view of the scope of their role and
duties than is the case with an experienced client.144
(e) Lawyering and mediation: The conflict and confluence of professions
In the USA, as in many other jurisdictions, more mediators come from the
legal profession than any other profession. A tension can exist when a
mediator maintains an active bar licence. While they are two different
professions, there can be a perceived overlap. For example, in Texas some
mediators refer to themselves as ‘attorney-mediators’.145 Having arisen as an

137
Atwell v Michael Perry & Co [1998] 4 All ER 65.
138
[1998] NSWSC 524.
139
See Boulle & Nesic ibid.
140
Allied Maples Group Limited v Simmons & Simmons [1995] 1 WLR 1602.
141
Boulle & Nesic op cit note 134.
142
See Boulle & Nesic ibid at 527.
143
[1998] NSWSC 524.
144
National Home Loans Corpn plc v Griffen Couch & Archer (a firm) [1998] 1 WLR
207.
145
Creo op cit note 15 at 314.
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issue of competition and credentials, it has been argued that this designation is
confusing in both the legal and mediation realms and harms both profes-
sions.146
The impact of disciplinary rules in the USA varies depending on whether
the relevant bar considers a lawyer who is mediating to be practising law. In
the event that it is deemed to be the practice of law, existing rules about client
confidences and duties to report may conflict with or alter local mediation
rules and guidelines. Some states have expressly stated that mediation is not
the practice of law, while others have more nuanced tests to determine if an
activity that is likely to occur in a mediation is considered to be the practice
of law.147
The ABA, through its Dispute Resolution Section, issued the following
resolution on ‘Mediation and the unauthorised practice of law’:
‘Mediation is not the practice of law. Mediation is a process in which an
impartial individual assists the parties in reaching a voluntary settlement. Such
assistance does not constitute the practice of law. The parties to the mediation
are not represented by the mediator.’148
As commercial mediation develops as an alternative form of dispute
resolution in South Africa, it would seem sensible for the representative
bodies of the attorneys’ profession and the bar to adopt a similar resolution in
order to avoid any potential ambiguity between these two distinct profes-
sions.
While it is important to distinguish between the two professions, there is
also much that the two professions can learn from each other as there is much
overlap and common ground between the two fields; knowledge of one
provides a deeper appreciation for the traditions and qualities of the other.149
For example, a US circuit court judge believes that acting as a mediator in
the federal court’s ADR programme improved her performance as a lawyer.
In her view, even extremely competent lawyers often mesmerise themselves
with the merits of their cases or project unsubstantiated optimism in an effort
to please clients. She explains that when the advocacy process is viewed from
the perspective of a mediator while still practising as a lawyer, it serves as an
antidote to such self-delusion in a lawyer’s own practice. Observing the work
of many other advocates from a detached perspective is also beneficial as
opportunities arise to see behaviours that are counter-productive as well as
behaviours that encourage more constructive and less defensive responses.

146
Ibid.
147
Richard Birke & Louise Ellen Teitz ‘US Mediation in the twenty-first century:
The path that brought America to uniform laws and mediation cyberspace’ in Alex-
ander (ed) op cit note 21 at 8.
148
The comments to the resolution cite numerous rules and formal opinions of bar
associations as support. See Creo op cit note 15 at 314. See also Clark op cit note 4
at 179.
149
Diane Levin ‘Bridging the divide between lawyers and mediators’Online Guide to
Mediation available at http://mediationblog.blogspot.ie/2007/01/bridging-divide-between-
lawyers-and_27.html, accessed on 1 January 2015.
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THE ROLE OF THE LAWYER IN THE COMMERCIAL MEDIATION PROCESS 381

This in turn, it is believed, acquaints a lawyer with a variety of ways to
respond to difficult behaviours by clients or opposing counsel and to meet
parties’ substantive needs. It also gives the person acting as a mediator a
chance to feel how a person sitting in the neutral’s chair reacts to a range of
lawyering behaviours.150

V LAWYERS AS GATEKEEPERS
Lawyers have been described as the primary ‘gatekeepers’ to help commercial
parties resolve their disputes. There has been a transformation in the mindset
of a large number of members of the legal profession in countries where
mediation has established itself as a viable alternative.151 Over time, lawyers
have become increasingly positive about the use of mediation to resolve
disputes,152 with the most powerful tools of persuasion being the actual
experience of the process and participation in mediator skills training.153 One
of the main challenges for the development of this field in South Africa is the
supply of sufficient numbers of competent lawyers who have a genuine
understanding of and willingness to participate in the process.154
Education and training can assist in developing this gatekeeper role. Law
faculties should expand their curricula to offer a broader range of communi-

150
Marsha Berzon ‘Beyond altruism, How I learned to be a better lawyer by being a
pro bono neutral’ (Summer 2004) Dispute Resolution Magazine 27.
151
Eileen Carroll ‘The future belongs to mediation and its clients’ in Christopher
Newmark & Anthony Monaghan (eds) Mediators on Meditation: Leading Mediator Per-
spectives on the Practice of Commercial Mediation (2005) 401.
152
See John Lande ‘Getting the faith: Why business lawyers and executives believe
in mediation’ (2000) 5 Harvard Negotiation LR 137; Julie Macfarlane ‘Culture change?
A tale of two cities and mandatory court-connected mediation’ 2002 J Disp Resol 241.
153
Carroll op cit note 151 at 401.
154
In a survey of American Bar Association members, respondents with mediation
experience in developing countries identified a marked change in attitude toward
mediation and a greater willingness to engage in the process in contexts where effec-
tive capacity-building measures had been introduced and were adequately resourced.
Where adequate capacity-building measures have not been implemented, respon-
dents identified a number of common barriers to mediation including lack of knowl-
edge and training among lawyers, judges and claimants; outdated legal provisions for
ADR in general and mediation in particular; and suspicion among local legal and
business communities of ADR, which was perceived as being extra-judicial. In Cam-
eroon, for example, one respondent noted that ‘some judges still do not consider
[mediation] a proper way of settling disputes’, see Internal Survey conducted by the
American Bar Association, Section of International Law, February 2012, World Bank
Group op cit note 5 at 4. Confusion among parties as to the proper approach to
mediating disputes has also led to overly adversarial proceedings in Pakistan, with
‘each party sticking to its own claim’, see Internal Survey conducted by the American
Bar Association, Section of International Law, February 2012, World Bank Group
ibid. Respondents from Africa and Latin America also referred to barriers stemming
from the way in which parties have been referred to mediation. For example, parties
that distrust the local courts are likely to be suspicious of mediation that is recom-
mended by those courts. See Internal Survey conducted by the American Bar Asso-
ciation, Section of International Law, February 2012, World Bank Group ibid.
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382 (2016) 133 THE SOUTH AFRICAN LAW JOURNAL

cation, negotiation and mediation skills-training in order to ensure students

appreciate that the human and commercial dynamics behind disputes is as
important as interpreting legal issues. Future lawyers need to be trained to be
problem solvers and to work to find the most cost-effective commercial
solutions for clients.155 It has been suggested that lawyers would be more
competent at conflict resolution if they were required to study communica-
tion skills and a variety of interpersonal skills in addition to spending a
number of years working in non-contentious legal areas before graduating to
conflict work.156
South African universities have developed courses in mediation and other
dispute resolution subjects.157 Some programmes are exclusively ‘academic’,
dealing with theory, principle and developments in the literature, while
others include competency-based training and practical skills development.
Assessment is generally assignment based, with examinations, tutorial or
seminar performance and competence in experiential situations forming part
of some courses.158

155
Mediation at the early stages of the tax appeals process in South Africa helped
clear the case back log. The annual reports of the South African Revenue Service
(‘SARS’) reflect that about 79 percent of the disputed matters were resolved through
mediation and that the remaining cases were resolved in the tax court or tribunal.
SARS attributes the success rate mainly to the standing of the third-party mediators,
who were usually retired judges with tax expertise. Legal professionals also provided
invaluable expertise in sector-specific disputes due to their knowledge and familiarity
with the intricacies of the application of tax legislation. See Alan Rycroft ‘Why
mediation is not taking root in South Africa’ (October 2009) Africa Centre for Dispute
Settlement, Quarterly Newsletter. See also World Bank Group op cit note 5 at 8. See also
Clark op cit note 4 at 103, 118 and 178.
156
The feedback from hundreds of lawyers who have been trained by CEDR
would seem to support this contention, the majority of whom wished they had
learned mediator skills earlier. Many expressed a distaste for the overly adversarial
system in which they work and seemed to be seeking escape routes to better ways of
working. See Carroll op cit note 151 at 402. Pakistan also offers useful evidence on
the effectiveness of training in a country where commercial mediation is emerging as
an alternative form of dispute resolution. Enforcing a contract in Pakistan through the
courts can require up to 46 legal procedures, take up to 976 days, and cost 23.8
percent of the value in dispute. The National Judicial Policy of 2009 calls on judges to
make use of ADR procedures. The Karachi Center for Dispute Resolution
(‘KCDR’) is the first alternative dispute resolution centre in Pakistan. Created in
collaboration with the Sindh High Court, the KCDR has been working since 2007
to relieve the backlog of civil cases in Karachi, Sindh Province. The Sindh High
Court has a backlog of 3,570 banking cases alone, with an overall caseload of 18,348
files. The KCDR trains mediators, including judges and also conducts mediations,
including specialised mediation sessions for women-owned businesses. In one recent
reported one-week session, 32 of 77 cases referred to it were successfully settled. See
World Bank Group ibid at 6.
157
For example, the law schools at the Universities of KwaZulu-Natal, Cape
Town, Rhodes and Witwatersrand offer elective courses in ADR. See Boulle &
Rycroft op cit note 72 at 204.
158
Ibid.
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THE ROLE OF THE LAWYER IN THE COMMERCIAL MEDIATION PROCESS 383

The Business School at the University of Stellenbosch launched a centre
for conflict management, dispute resolution and negotiation in 2008.159 The
purpose of the centre is to develop advanced conflict management and
negotiation learning practice in the business and organisational context in
Africa, through academic programmes at masters and doctoral level, research,
staff development and curriculum development. There are also plans to run
shorter courses such as management development programmes. Following
the success of programmes that have been running at the University of
Pretoria for many years,160 it is another centre of education in South Africa to
have a specific focus on the resolution of commercial disputes. It is to be
hoped that such initiatives will serve as an example to other South African
tertiary institutions on the importance of commercial mediation as an
essential module in their business and law courses.

VI THE SHADOW OF THE LAW AND THE JUSTICE IDEAL

All dispute resolution, conventional or alternative, takes place within a legal
framework.161 It is for this reason that mediation is said to take place within
the shadow of the law.162 ADR is generally accepted as the acronym for
‘alternative dispute resolution’. It includes all forms of dispute resolution
other than litigation or court adjudication and offers the possibility of
resolving disputes through a process that is most appropriate to the relevant
dispute. It is for this reason that many commercial mediation practitioners
prefer to use the acronym to refer to the words ‘appropriate dispute
resolution’, believing that the sovereign quality of the courts cannot be
confronted by any alternative mechanism. Mediation is seen simply as a step
towards achieving a resolution which, if unsuccessful, is followed by
litigation.163
Similarly, a former Chief Justice of the Supreme Court of New South
Wales believes that ADR should really stand for ‘additional dispute resolu-
tion’. He believes that alternative processes such as mediation should be seen
as additional or complementary to litigation as they are not alternative
procedures within the court system.164 In his view, although commercial
mediation is a valuable social mechanism for the resolution of disputes, it is
not an exercise in the administration of justice as it is not subject to any
judicial appellate or supervisory authority. While one expects the procedures

159
Under art 1 of the Centre’s constitution, it is currently referred to as ‘The Africa
Centre for Dispute Settlement’. See also www.usb.ac.za/disputesettlement, accessed on
1 January 2015.
160
http://ce.up.ac.za/default.aspx?tabid=58&Course=BDDB80F9-B8F2-DF11-9E88-
0050569B0004, accessed on 1 January 2015.
161
See Trollip op cit note 29 at 7.
162
See Robert M Mnookin & Lewis Kornhauser ‘Bargaining in the shadow of the
law: The case of divorce’ (1979) 88 Yale LJ 950.
163
Trollip op cit note 29 at 7.
164
Sir Laurence Street ‘Mediation and the judicial institution’ (1997) 71 Australian
LJ 794 at 795–6.
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384 (2016) 133 THE SOUTH AFRICAN LAW JOURNAL

to be operated fairly, he believes that the principles of natural justice or due

process have no more relevance in a commercial mediation than they have in
the mediation of any other commercial deal, as mediation does not involve
the imposition of a decision that affects the parties’ rights or interests.165 As a
seasoned US mediator has pointed out, mediation is an extension of business
negotiations. It should be seen as a commercial and not a judicial process.166
This approach sits well with the contention that ADR processes, and
mediation in particular, do not diminish the role of judges. As cases are settled
against the backdrop of rights emerging from decided case law, success in
mediation depends to some extent on the parties having the confidence to
disclose their points of weakness to the mediator. The mediator’s role is
complementary to what judges do, but cannot be done by judges. A party
cannot safely disclose its vulnerabilities to a judge as the judge may ultimately
decide the case. The mediation process thus fits comfortably within the
framework of the court system.167
Despite the discussion above regarding the ‘appropriate’ or ‘additional’
aspects of ADR, the term has in South Africa, as in other countries,
represented the words ‘alternative dispute resolution’.168 The tendency to
abandon the title ‘alternative dispute resolution’ in favour of the title
‘appropriate dispute resolution’ or ‘additional dispute resolution’ reflects a
change of emphasis and development in this area. It acknowledges the fact
that ADR is about more than the application of one or more alternatives to
litigation. ADR involves the selection or design of a process that is best suited
to the relevant dispute and to the disputing parties.169 It would also seem that
more than in any other country where dispute resolution is of interest, South
African dispute resolution practitioners have been exposed for some time to
intense levels of conflict and pressure to change to and improve traditional
forms of dispute resolution.170
(a) Mediation and the practitioner: The umbilical link to justice
Former US President Abraham Lincoln once wrote:

165
Ibid.
166
John P Madden quoted by James T Prior ‘Mediation cuts costs of construction
disputes’ (June 2002) New Jersey Business 102.
167
Fergus Armstrong ‘Lost in translation’ (August/September 2004) Law Society
Gazette 26 at 30.
168
Paul Pretorius (ed) Dispute Resolution (1993) 1.
169
Dispute resolution therefore describes the area of practice and study concerning
the selection, design and application of a process that best deals with a particular
dispute or conflict and is most appropriate for the requirements of the disputing
parties. See Pretorius ibid at 1.
170
Pretorius ibid at ix and 2. It seems that a critical assessment of adversarial litiga-
tion relative to other forms of ADR is central to the study of dispute resolution, with
the objective of providing a broader range of creative and effective processes and
mechanisms to disputing parties, supplementing rather than supplanting court adjudi-
cation. It has also been suggested that the ADR concept includes conflict avoidance,
conflict management and conflict resolution, as three closely related sequential
approaches in the field of commercial interaction. See Street op cit note 79 at 361.
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THE ROLE OF THE LAWYER IN THE COMMERCIAL MEDIATION PROCESS 385

‘Discourage litigation. Persuade your neighbours to compromise whenever
you can. Point out to them how the nominal winner is often a real loser, in fees,
expenses and waste of time. As a peacemaker the lawyer has superior
opportunity of being a good man. There will still be business enough.’171
As discussed above, and as Lincoln discovered many years ago, the obvious
lesson for the commercially-minded lawyer would appear to be that a
disciplined approach to negotiation can be as effective for their clients as a
disciplined approach to case management in litigation or arbitration.172
Some lawyers see their involvement in the mediation process as an
opportunity to do something that they find more personally fulfilling than
litigation. Some lawyers see mediation as a transformative experience. Others
talk about the ‘magic’ of resolving disputes and that they, similar to athletes,
have a feeling of being ‘in the zone’ when a mediation is progressing
satisfactorily.173
It is suggested that the mediation of commercial disputes belongs at the
heart of legal practice. The reason that there are signs of the ‘alternative’
appearing is due to the fact that the gap between justice and what the legal
system can provide has become unacceptably wide. It follows that a system
which assists parties to exercise personal power and autonomy to settle their
differences with the assistance of their lawyers through the facilitating skills of
a third party should be seen as mainstream.174
An issue that arises for the practitioner in this context is the relationship
between the mediated settlement and justice. The French philosopher
Compte-Sponville suggests that the core principle is to favour ‘equality,
reciprocity or equivalence between individuals’. He believes that justice is
the virtue of order and exchange, equitable order and honest exchange, and
for an exchange to be just, it must take place between equals, or there should
at least be no difference between the parties to the exchange regarding
wealth, power or knowledge that might make them accept an exchange
contrary to their interest, or contrary to their free and enlightened interest as
expressed in a situation of parity.175
The critical point is that he suggests that equality is not so much about the
objects exchanged as it is about the subjects involved in the exchange, which
presupposes that they are equally informed and free. We get from all of this a
‘golden rule of justice’: ‘In any contract and exchange, put yourself in the
other’s place, but knowing everything you know and supposing yourself to

171
Philip Van Doren Stern (ed) The Life and Writings of Abraham Lincoln (1999) 15.
172
See Karl Mackie ‘The future for ADR clauses after Cable & Wireless v IBM’
(2003) 19(3) Arbitration International at 351.
173
Hensler op cit note 107 at 191.
174
Armstrong op cit note 167 at 30. For a discussion on power in mediation, see
Spencer & Brogan op cit note 40 at 223–37.
175
Andre Comte-Sponville A Short Treatise on the Great Virtues, The Uses of Philoso-
phy In Everyday Life (2002) ch 6.
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386 (2016) 133 THE SOUTH AFRICAN LAW JOURNAL

be as free from need as it is possible for someone to be and see if, in his place,
you would approve this exchange or contract.’176
It is suggested that this could provide a yardstick for what is fair in a given
context which, in turn, gives rise to the possibility of a ‘level playing field’.
The mediation process provides scope for the purest and most intensely
satisfying of legal work, which is to examine a client’s position in a measured
way with consideration of all relevant authority and to be prepared to discuss
that in civil dialogue with an opposing colleague. It follows that as the costs of
mediation are usually well below the usual costs of the litigation process,
there is better scope to allow this task the time it needs.177
Anthony Kronman, a former Dean of the Yale Law School and author of
an interesting critique of the US legal profession,178 describes a spiritual crisis
affecting the legal profession. He attributes the crisis to the collapse of what
he calls the ideal of the lawyer-statesman, which involves a set of values that
gives precedence to good judgment over technical competence and encour-
ages a public-spirited devotion to the law.
Kronman argues that for nearly two centuries, the aspirations of lawyers
were shaped by their allegiance to a distinctive ideal of professional
excellence. However, in the last generation, this ideal has failed, undermin-
ing the identity of lawyers as a group and making it unclear to those in the
profession what it means for them personally to have chosen a legal career. A
variety of factors have contributed to this. Kronman believes that it is partly
the result of the triumph in legal thought of a counter ideal that denigrates the
importance of wisdom and character as professional virtues. It is also partly
due to an array of institutional forces, including the explosive growth of
leading law firms and the bureaucratisation of the courts. Each of these
developments has a common tendency to compromise the values from
which the ideal of the lawyer-statesman draws strength.179
All of these factors appear to have adversely affected the identity of
lawyers. Kronman believes that if we think of the lawyer as a jack-of-all-
trades, with a dilettante’s understanding of many fields but no expertise of his
own, serving only as an intermediary between other disciplines, then the
lawyer’s position will be one marked by deference towards the real experts in
those areas. However, he believes that if the lawyer is an amateur in the fields
of these other experts, they are amateurs in the lawyer’s field. When it comes
to the imaginative probing of specific cases, it is the lawyer who is best
equipped by training and temperament to lead the way. Kronman explains
that the ability to fashion cases and to empathetically explore both real and
invented ones is the lawyer’s professional forte.180
In a similar spirit, it can be concluded that as the justice ideal is somewhere

176
Ibid at 70.
177
See Armstrong op cit note 167 at 30.
178
Anthony T Kronman The Lost Lawyer (1995).
179
Ibid chs 5 and 6.
180
Ibid ch 7.
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near the heart of the question of what is a lawyer’s unique contribution,
mediation offers an opportunity for members of the profession to reinforce
their sense of the worth of what they do by obtaining satisfaction from their
engagement in the process.181

181
Armstrong op cit note 167 at 30.