Victory for ADR and Mediation

“I generally operate in a space where my faith is way bigger than what I can see or even explain. But today we got to enjoy the fruits of our tenacity in court: illegal gathering and public violence matter diverted to mediation against significant odds Gratitude to the amazing work of power ACCESS TO JUSTICE legal ADR team Krish Jairam Attorneys, Advocate Tango and Brandon Abdinor. All the hard work has not been in vain. Respect also to Mazibuye for bringing such issues to the fore. Let us go forth and replicate this stuff everywhere”

-Sheena St. Clair Jonker

 

Holla!

 

I blog in peace.

 

As you know, we often intervene in matters before court and advocate for diversion or referral to Restorative Justice ADR Dialogue or mediation. In criminal matters this involves making representations to the Senior Public Prosecutor, and if unsuccessful, then the Director of Public Prosecutions, and if unsuccessful, then the National Director of Public Prosecutions.

 

One such matter, S v Sangweni and others involves 43 workers, and 3 leaders of a civil rights organization arrested and charged with illegal gathering and public violence. The organization, Mazibuye, is an organization that tirelessly and fearlessly advocates for the poor and addresses human rights violations head on. In this particular matter, the group had entered into negotiations on various unfair labour practices and other violations including pay as little as R 27 a day and the dispossession of Identity Documentation. Agreement was reached and when it was reneged on a few days later, the leaders lead the workers in a gathering and march. There are many dynamics at play including the fact that the Illegal Gatherings Act does not favour groups that gather and march in this way, even where it is an outworking of desperation and ongoing and unaddressed human rights violations. The Access to Justice Association of Southern Africa is intent on raising the constitutionality of this in the appropriate forum.

 

Yesterday the court in this matter ordered a diversion to mediation. This after seven months of representations and indications by the SPP that the content of the charges was ultra vires the NPA protocol on diversion. But working tirelessly and tenaciously, and completely pro bono, Access to Justice legal and dispute resolution team made up of Krish Jairam, Advocate Khaya Tango and Brandon Abdinor rallied up support of the Department of Labour, the Complainant Company and demonstrated to the DPP that such diversion is not only supported in our law, but accords with wisdom and reason. This is a victory for the potential to address the cause and interrupt a culture of simply reacting and suppressing those that have authentic concerns simply by pulling the Illegal Gathering card. This is also a victory for diversion to mediation which we intend to replicate all over the country as there are several such matters that we have been consulted in.

 

We are currently setting up substructures of the Access to Justice Association of Southern Africa in each province. As some of you know this is an NGO platform purposed to mobilize and resource lawyers and Dispute Resolution Practitioners to get in the way of injustice and specifically to provide Access to Justice for the poor. If you wish to be part of one of these substructures, please email sheena@accesstojustice.co.za

 

Our ADR Program now includes content on Court Annexed Mediation Rules (the project due to pilot across SA on 1 August) as well as advocacy in ADR and mediation diversion such as described above. We provide replicable written and oral representation protocol pioneered and developed in the course of our own practice in this.

 

To join training, please send an email to training@adr-networksa.co.za

 

Upcoming dates are

Jozi 7-11 July

Bloem 21-26 July

Durban 4-8 August

Cape Town 25-29 August

Distance Learning over 12 months (can be fast tracked over 3 months)

 

As always, Peace

Sheena

0614915314//0843773340

Commercial Mediation: Blue Ocean Strategy and Co-operative Business Practice

Holla!

I blog in peace. And today I blog about the application of mediation in commerce. And I want to specifically speak about co-operative business practice.

As many of you know, Gerhard Borstlap has recently joined ADR Network SA as our Operations Director. He is something of a philosopher in his own right, as am I, to the extent that we are seekers of wisdom. So we have been exchanging a lot of thoughts, ideas sharing and merging to some extent our own philosophies and those of others. Gerhard has a great interest in game theory and military strategy. And we believe that in as much as we are absolute proponents of non-violence and non-adversarialism, there is much to be learned from such theory and strategy that can be utilized in displacing what we regard as unhelpful systems and mindsets.

In resolving commercial conflict I often tell business owners and leaders that I regard competitive practice in business as average, mediocre at best, and ultimately detrimental at worst. And so I have been engaging with business leaders about co-operative business practice for some time. Recently a representative of a large group has asked to engage us on a transactional mediation mandate to set up co-operative partnerships with multi-nationals. Very exciting stuff.

But this morning before dawn, a light bulb went on for me and I realized that my philosophy and those of Gerhard’s merge and accord in a very powerful way. He talks a lot about blue ocean strategy and the art of war.

Allow me to explain: Red Ocean Strategy is about bloody competition in business. Thus the read waters. It is about confrontation, combat and ultimately conquering or destroying competitors who are regarded as opponents or enemies. It is about dividing up shrinking demand. It is about benchmarking. It is about head to head combat with rivals. We all know that this involves casualties along the way. It involves deteriment and often total destruction. Businesses bleed. Often to death.

BlueOcean Strategy makes competition irrelevant by creating uncontested market space. And I am going to expand here and say that it also involves destroying enemies or rivals by making them friends. We can compete with our rivals or we can co-operate with them, help them even, want the best for them. We can take business to stratospheric untapped unfathomable levels.

We believe that in business the ultimate way win victories is accomplished without combat. Sun Tzu says that the supreme art of war is to subdue the enemy without fighting. We regard the enemy as adversarial patterns, competition, rivalry. We dismantle this by making competition irrelevant. Creating uncontested markets. Applying co-operative business strategy.

Corporate strategy has been profoundly influenced by military strategy. Rivalry, competition, combat. It has been about confronting an opponent and about fighting over a given piece of land that is limited and constant. But we know that the market is not constant. And it is not limited. So this kind of strategy adopts key constraints of war strategy.. Limited terrain and the need to conquer the enemy to succeed.

Superior strategy is accessible. It lives in a higher realm. Co-operation. Collaboration.

So how do we make this shift. We use the weaknesses of current strategy: rivalry, combat, competition to displace it with co-operative business practice.

Sin Tzu says who wishes to fight must count the cost. The cost is high. It is damaging. Often fatal.

So in practice how does this work. Organizationally you can take a big picture look and invite us in to systematically shift your business practices from competitive combative business practices and culture to co-operative business practice and culture.

Transactionally, transactional mediation is a powerful model of mediation used to create co-operation in legal contract and business relationship negotiations. The scope in commercial mediation is untapped. And it is powerful.

Both Gerhard and myself do public speaking around these topics. If you are interested, please email Gerhard@adr-networksa.co.za and sheena@adr-networksa.co.za

For ADR Training in Mediation and Arbitration  training@adr-networksa.co.za

As always, and until next time, peace.

Sheena

Sources:

BlueOcean Strategy

The Art of War

Gerhard Borstlap