Part I: The Introduction of Court Annexed Mediation in the High Court and Commercial Court of Lesotho

 

THE INTRODUCTION OF COURT ANNEXED MEDIATION IN THE

HIGH COURT AND COMMERCIAL COURT OF LESOTHO

INTRODUCTION

The functions and goals of the Judiciary include providing easy access to justice and the speedy resolution of cases which also aims at the reduction of the backlog of cases in our courts. In an endeavour to achieve these goals, the High Court of Lesotho has introduced a “Multi-door” court house. This envisions a court house with multiple dispute resolution doors or procedures. Mediation is one such alternative dispute resolution door that the court has introduced. It is an alternative to the adversarial dispute resolution system by which a litigant in a case before court,  goes through the entire process of litigation which can be quite lengthy and costly.

Mediation is simply a process facilitated by a neutral third party (the mediator) who assists the parties to the dispute to explore various options and solutions available in order to reach a mutual agreement. The mediator guides the parties as well as encourages and assists them in deciding how to resolve their dispute.

Mediation in courts can be “Court Annexed” or “Court Connected”. The High Court of Lesotho has opted to use court-annexed mediation (CAM) in preference to court connected mediation. The former refers to the mediation of cases filed within the court which means that all civil and commercial cases filed at the court shall go through the mediation process.

Currently, all the designated mediators are the Court personnel, namely Assistant Registrars and Judges’ Clerks who through the assistance of the International Law Institute – African Centre for Legal Excellence (ILI-ACLE), with funding from the Millennium Challenge Account – Lesotho, received intensive training on Mediation theory and practice. The profiles of the Mediation Personnel will be elaborated in subsequent articles.

The mediation process is governed by the High Court Mediation Rules which were published in Gazette No. 48 of May 26, 2011. They were launched on June 3, 2011 by the Honourable Chief Justice.

Mediation is a civil process designed to take a number of logical steps. The following is a summary of the two procedures for referring a dispute to CAM.

A case file is opened in the High Court and in the pleadings each party includes a brief statement indicating whether that party consents to or opposes a referral of the dispute to mediation under the CAM programme. If a party opposes the referral to mediation, then upon proper cause being shown by that party the Mediation Administrator makes a recommendation on that party’s motion for exemption from mediation under the CAM Rules. This process applies to cases filed from the commencement of these Rules.

All pending cases – those filed before the commencement of the CAM Rules– shall be mediated upon referral to CAM of the case by the Judge allocated to the particular case. This can be done at any stage before judgment of such a matter is made.

We now turn to a summary of the benefits of CAM:

BENEFITS OF MEDIATION

As the disputing parties and mediators are participants in the CAM process, the parties in dispute feel that the negotiated settlement is achieved by them.

The process of mediation saves time. This is because the process is meant for a period of two days to a maximum of 30 days as provided for by Rule 10 of the CAM Rules. This means it brings the desired solution quicker for the parties as compared to protracted litigation which may take years before completion. Accordingly, Mediation enhances the speed fo the delivery of justice.

Because mediation is quicker, it can save the costs of a lengthy litigation and the expenses of securing witnesses to court.

Those are the most basic advantages of Court Annexed Mediation,. More will be discussed in the next issue.

For more information please contact:

The Office of the Registrar

Palace of Justice

P. O. Box 90

Maseru

Tel: 22323164

Fax: 22321375

 

Part II: The First Hearing Session

 

PART TWO: LESOTHO’S COURT-ANNEXED MEDIATION PROGRAMME (CAM)

The First Hearing Session

The Court-Annexed Mediation (CAM) Programme is one of the new initiatives introduced under the Civil Legal Reform Project with the support of the Millennium Challenge Account – Lesotho (MCA-Lesotho) and the International Law Institute –African Centre for Legal Excellence (ILI-ACLE). In the last article, we examined the initial steps for referring a dispute to the CAM programme. Two scenarios were explained – namely, automatic referral of all “new” cases – those filed after 26 May 2011 (the commencement date of the Mediation Rules); and referral, by presiding High Court Judges, of “pending” cases – those filed before 26 May 2011.

In this new article, we focus on the next step of the Mediation Procedure: what happens to the case after the referral order has been made.  First, the Mediation Administrator will assign the case to a substantive Mediator from one of the High Court’s Mediators – who have been trained extensively over time, to hone their skills as Mediators.  Even though they are all lawyers (Assistant Registrars and Judges Clerks), their Function as Mediators calls for specialized training outside the practice of law.  Their role is to guide the Parties discover hidden possibilities and salient options of finding a constructive way forward along the Parties’ freely chosen path to a destination of mutual settlement of their dispute.

Mediators do not engage in the legal merits and complexities of the case.  Indeed, a mediator need not be a lawyer at all.  A trained mediator could belong to any other profession: e.g. Accountancy, Architecture, Medicine, Engineering etc.  Mediators do not have authority to impose any decisions on the Parties.  Above all, they are not judges – they have no authority to deliver a judgment in the matter.  They are facilitators of the process for the Parties themselves to find a mutual solution to their dispute – that is all.  These are the skills the High Court Mediators have mastered in the course of their various training sessions – in both theory and practice.

Second, within 14 days of the referral, the Mediator calls the first session of the Mediation.  At this point, all judicial activities and the usual court time limits cease to run – from the date of the referral, until the final report of the Mediator on the outcome of the mediation effort.

Third, each session lasts a maximum of two days only – subject to extension in compelling cases – for instance, where the Parties need more time to wrap up an ongoing settlement effort.  This underlines one of the primary principles of the Mediation Programme – namely, to conduct the process with speed and diligence, thereby to conserve costs and time.

At this first hearing, the Mediation Administrator, sitting with the Parties and their counsel, focuses on the issues to be mediated; the times within which to complete the mediation sessions; the Parties that will be required to attend the mediation sessions in person; and any other matter that may be necessary or desirable to facilitate the efficacy of the mediation process.

It is at this first hearing also, that the Mediation Administrator will make a recommendation to exempt a Party who may be opposed to mediation – if the Party shows proper cause for the exemption.  However, for any such exemption to be entertained, the opposing Party must have clearly indicated his opposition at the time of filing his initial case documents filed before the Court.  In this connection, the Mediation Rules require each Party to a dispute to include, in their initial court documents, a brief statement indicating whether the Party consents to or opposes referral of the dispute to mediation under the CAM Programme.

Where the mediation takes off, the Rules require that they be completed within a maximum of 30 days from the date the Mediator received the referral order.

In the next article, we will consider the next step in the Mediation process – namely, attendance at the mediation sessions; and consequences of non-attendance.

For more information, please contact:

The Office of the Registrar

Palace of Justice

P. O. Box 90

Maseru

Tel: 22323164

Fax: 22321375

Part III: Attending Mediation Sessions in Person

 

PART THREE: COURT-ANNEXED MEDIATION IN LESOTHO

 

Attending Mediation Sessions in Person

 

This is the third in the series of articles on the Court-Annexed Mediation (CAM) Programme for Lesotho, one of the initiatives funded by the Millennium Challenge Corporation through its local counterpart, the Millennium Challenge Account – Lesotho (MCA-Lesotho). The last article discussed in detail the proceedings at the first hearing session between the parties to a dispute. This present article examines the attendance at the hearings of a mediation session.

 

The Mediation Rules vest various responsibilities in the Mediation Administrator to implement, administer and oversee the CAM Programme and its procedures. In particular, it is the Mediation Administrator who assigns each dispute to a particular substantive mediator. It is also the same Administrator who presides at the first hearing of the matter – at which directions are given regarding the issues to be mediated, the time within which the mediation sessions are to be completed, and  (more importantly for this stage), the Parties that will be required to attend the mediation sessions in person.

 

The requirement for personal attendance is significant, because the genius of mediation is about dialogue and flexible person-to-person negotiations. It is not, as with litigation, a mechanism for these Parties’ surrogates (the Advocates) to do the talking. On the contrary, Mediation is the empowerment of the Parties themselves to solve their own dispute strictly on their own terms and conditions. It therefore requires the Principals themselves to be present at the hearing sessions.

 

Accordingly, the following are required to attend in person:

 

(a)  All the parties and their lead counsel (all those who have the authority to settle and if necessary to adjust the matter;

(b)  All other persons whose agreement will be necessary to achieve a settlement;

(c)   Legal persons or other non-governmental entities as represented by a person, other than the outside counsel, who has authority to settle the matter and who is knowledgeable about the facts of the particular dispute;

(d)  For the Government or its agencies and units, a representative who has the greatest authority to settle the matter, and who is knowledgeable about the facts of the particular dispute and of the Government policies and procedures under which that agency or unit may decide to accept a proposed settlement of the dispute. Here, a person other than the Government’s litigation counsel is preferred in order to ensure that the person attending the sessions has full authority to commit the Government in whatever settlement and stipulations are entered into at the mediation sessions. For this purpose, it is the duty of the Mediation Administrator to extract assurances from the Government litigation counsel that the representative of the Government attending the Mediation sessions has settlement authority.

 

Notwithstanding the strictness of the above requirements, Mediation being the flexible mechanism that it is, recognizes that not everybody can at all times attend the sessions in person. Accordingly, the Rules provide for appropriate exemption in compelling cases. A person may request to be relieved of the duty of personal attendance (a) if he confers with the opposite party to the dispute; (b) upon showing that personal attendance would impose a serious and unjustifiable hardship; and (c) after submitting an explanatory letter to the Mediation Administrator (copied to all other parties) setting forth the reasons to support his request. If excused from personal attendance, the person should still be available to participate by electronic media during the mediation sessions.

 

This rather elaborate requirement is significant. It underscores at least two important philosophies of mediation. First, the personal touch in Mediation that is critical for a heart-to-heart dialogue. Second, the importance of expedition, efficiency and effectiveness of the Process, which are key for resolving the dispute quickly, fairly, inexpensively and effectively. These two require that the principals to the mediation be personally present at the negotiating table. Only then would the prescribed target for mediations to last a maximum of two sessions of two days each be achievable. This rule is fortified by the complementary rule requiring mediation sessions to proceed without adjournments. To ensure all these, the rules have established a consequence for non-attendance. A party who without good cause fails to attend the mediation session is liable to pay the adjournment costs of that session.

 

It is quite evident that the CAM Programme, by insisting on these simple rules, does bring a new and refreshing sense of speed and seriousness into the dispute resolution mechanism of Lesotho, which aims to tear down the wall of sluggishness and inordinate expense inherent in the traditional litigation mechanism.

 

For more information please contact

 

The Office of the Registrar

Palace of Justice

P. O. Box 90

Maseru

Tel: 22323164

Fax: 22321375

Part IV: A Summary of the Party’s Case in Mediation

 

PART FOUR: COURT-ANNEXED MEDIATION IN LESOTHO

 

A Summary of the Party’s Case in Mediation

The Court-Annexed Mediation (CAM) Programme is one of the new initiatives that has been introduced in the High Court of Lesotho under the Civil Legal Reform Project (CLRP), with the support of the Millennium Challenge Account – Lesotho (MCA-Lesotho) and the International Law Institute – African Centre for Legal Excellence (ILI-ACLE).

 

The last article in this series of the basic steps in the CAM Programme of the Lesotho High Court, dealt with the question of the personal attendance of the Parties at the mediation hearings (called sessions). We concluded that the strict requirement for personal attendance was to enhance the serious and speedy resolution of the Parties’ dispute.

 

This present article examines the documents required from the Parties in preparation for the mediation sessions. Here, we shift our attention from the requirement for the Parties’ physical attendance at the sessions, to the requirement of what documents to prepare for the session.

 

For the efficiency of the System, each Party is required to submit a Case Summary, explaining its case. This document is quite separate from the substantive documents (called the “Pleadings”) which the Parties will have already filed with the Court Registry to constitute the ‘case file’.

 

Why then, is there a need to file the summary of the case with the Mediator?First, the Mediator does not need the whole file. In Mediation, he will not deal with the substantive merits of the case. He will not deliver a judgment in the case. The Parties themselves will reach a settlement on their own terms. Second, the Mediator must remain neutral in the matter; nor will he keep a record of the substantive proceedings of the mediation – for which he would have needed the file. All he needs, therefore, is a brief summary of each Party’s case, to enable him to guide the Parties during their dialogue and negotiations on the case.

 

What then, is the‘Case Summary’? The Mediation Rules have a lot to say about that. First, the length of the Case Summary is specified as ‘not exceeding 10 pages’. This leaves the flexibility and discretion for each Party (through its Lawyer) to decide on whether to write a Summary of 8, 5 or even 2 pages. Nonetheless, the implication and the spirit of the Rules is for a document close to, if not exactly, 10 pages. The simplicity or complexity of each case will determine the brevity or length of the summary within the allowed maximum of 10 pages. Experience over time will develop the ideal format and template for these summaries.

 

As regards the contents of the Case Summaries, the Rules are specific. They list the following requirements:

(i)                the facts of the case;

(ii)              an explanation of the interest and position of the Party (for whom the Summary is written);

(iii)            an explanation of the legal or factual issues in dispute – in short, the essence of what the dispute is all about. These may be legal issues. These may be only factual issues – or both;

(iv)            a list of witnesses (including expert witnesses) and important exhibits that the Party intends to rely on.

 

As is evident from the above list, the Summary calls for an Outline, a skeleton: the bare basics of the case. It is intended to give a snapshot of each Party’s case. It is not intended to be argumentative or exhaustive. It is a ‘summary’, not a submission. The Mediation Process is not for elaborate argumentation, cross-examination, legal submissions, and such. It is for the Parties to dialogue and to negotiate a mutual settlement of their own dispute, on their own terms.

 

The Rules are clear. The summaries are strictly for the Mediator alone and the mediation session only, full stop. They are not for filing in the Court Registry; nor are they to be accessed even by the Judge allocated to that case.

 

This underscores a fundamental feature of Mediation, which is missing in ordinary litigation – namely the strict Confidentiality of the Mediation Process. Given the overwhelming importance of that feature, we will dedicate the next article of this series to an exclusive examination of Confidentiality in Mediation.

 

For more information please contact:

 

The Office of the Registrar

Palace of Justice

P. O. Box 90

Maseru

Tel: 22323164

Fax: 22321375

Part V: Confidentiality of Mediation

 

PART FIVE: COURT-ANNEXED MEDIATION IN LESOTHO

 

Confidentiality of Mediation

The Court-Annexed Mediation (CAM) Programme is one of the new initiatives that has been introduced in the High Court of Lesotho under the Civil Legal Reform Project (CLRP), with the support of the Millennium Challenge Account – Lesotho (MCA-Lesotho) and the International Law Institute – African Centre for Legal Excellence (ILI-ACLE).

 

In the last article in this series, we considered the requirement for the Parties in a Mediation to prepare for the Mediator a summary of their respective cases. We concluded that these summaries are intended for the use of only the Mediator during the particular mediation sessions concerned – and not for anyone else; nor for any other proceedings that may arise out of that dispute. The summaries are not for filing in the Court’s Registry. Indeed, even the Judge allocated to preside over the case (in the event that mediation does not succeed), is not allowed to have access to the Parties’ Case Summaries. We explained that all this had to do with conserving and enhancing the Confidentiality of the Mediation Process.

 

Confidentiality is a critical feature of Mediation. This is because Mediation in general – and especially so Court-Annexed Mediation, in particular – is always understood to be conducted on the premise of ‘without prejudice’ – namely, that whatever positions are taken informally by the Parties in the mediation proceedings, are taken without prejudice to the formal position of the Parties in the event that the mediation effort does not succeed. In other words, the positions taken by the Parties during the Mediation, will not prejudice the Parties if their case is to ultimately go to litigation. Whatever concessions, admissions, submissions and positions the Parties made or took in the Mediation Sessions, stop strictly within the confines of the four walls of the mediation halls.

 

That is why: (1) the original case file is never transferred to the Mediator; (2) the Mediator does not keep a Record (or minutes) of the substantive proceedings of mediation – (except only to record the agreed settlement of the Parties, and its terms); (3) the Summaries of the Parties’ respective cases are not accessed by anybody else outside the mediation process – not even the Judge allocated to the particular case. The Judge has no access before, during or even after the mediation. This gives the assurance and the confidence to the Parties that their mediation effort will be kept confidential in all circumstances and for all purposes.

 

Two other factors come in to fortify this position even further. One, in addition to submitting to the Mediator the required Case Summaries, a party that wishes to do so, may submit directly to the Mediator for his ‘eyes only’, any other confidential written statement describing any additional interest, considerations or matters that such Party might wish the Mediator to understand before the Mediator begins the process. Two, the Mediator is bound by a professional code of standards (ethics), to keep the confidentiality of the process over which he presides. All these elements redound to the Confidentiality of Mediation.

 

The Rules are emphatic. All communications with the CAM proceedings are confidential. In particular, no person may disclose to the assigned Judge any communication made, position taken or opinion formed by any Party or the Mediator. A few, largely technical exceptions are allowed – but the robust thrust and spirit of the Rules is to provide for water-tight confidentiality of the Process.

 

Confidentiality is a feature, perhaps above all others, that makes Mediation highly attractive and desirable – especially to Parties whose business, profession, position or other consideration require the tight cover of confidentiality. This could, for instance, be the case with business or company secrets, intellectual property, divorce, custody of children, etc. These are issues which may, in most (not all) instances best be addressed outside the glare of the public eye and the resonance of the public ear!

 

For more information please contact:

 

The Office of the Registrar

Palace of Justice

P. O. Box 90

Maseru

Tel: 22323164

Fax: 22321375

Part VI: Advantages and Benefits of Mediation

 

PART SIX: COURT-ANNEXED MEDIATION IN LESOTHO

 

Advantages and Benefits of Mediation

The Court-Annexed Mediation (CAM) Programme is one of the new initiatives that has been introduced in the High Court of Lesotho under the Civil Legal Reform Project (CLRP), with the support of the Millennium Challenge Account – Lesotho (MCA-Lesotho) and the International Law Institute – African Centre for Legal Excellence (ILI-ACLE).

 

The last article discussed a feature Confidentiality: which makes Mediation extremely attractive and desirable. People find in Mediation the ability to keep confidential their business, company, family and personal secrets from the prying eyes and eager ears of the public. That is a critical advantage of Mediation.

 

The present article adds other Advantages and Benefits of Mediation. There are quite a bundle. In the brief space of this article, however, we will deal with only some of the most important of them all – and in no particular order of priority.

 

First,Mediation is by far faster than litigation. The Mediation process lasts a maximum of only 30 days (extendable only for very compelling reasons). The actual hearing sessions last only 2 days or less. Litigation, on the average, takes 2 – 3 years. The speed in mediation is based on deliberate policy and law. But it is also a function of the process itself. Mediation does not deal in the elaborate documentation and desperate technicalities ingrained in the classical litigation procedure. Instead, Mediation thrives on the simplicity, informality and alacrity of process and procedure.

 

Second, because of its speed, Mediation yields abundant savings in time, expense and relations. The attendant expenses (of lawyers’ costs, witness’ fees, travel, accommodation and miscellaneous expenses) are commensurately lower than the comparable expenses of litigation. The bottom line of all this is expenses saved. But an even more salient saving shows up at the end of a successful mediation, when the once antagonistic adversaries break their fists into open palms to congratulate each other’s success in the triumphant settlement of their dispute. This shaking of hands is symptomatic of the business or family relationship saved, and the continuation of former ties. Litigation perpetuates the Parties’ differences, and ultimately destroys their relationships – when only one of them finally wins the case (most likely on appeal)! Mediation leads all the Parties to a win-win situation.

 

Third, litigation being bitterly adversarial, time-wasting, money-consuming, and intimidating (with proceedings conducted in the opaque mysteries of the judicial shrine, steeped in the harrowing glare of the public eye), leads to a stressful process – at the end of which one of the Parties is destined to lose everything. Litigation then, is a stressful gamble!

 

As against all that, Mediation is informal, transparent and is conducted before a trusted, neutral third party having no accoutrements of the judicial intimidation and mystique; nor, indeed, any authority to pass judgment in the matter. It is a user-friendly environment in which the Party is boss.

 

Fourth, is the phenomenon of Empowerment of the Parties. In mediation, the Parties ‘choose’ their own court and judge (the Mediator). Even in Court-Annexed Mediation, the Parties have an implicit right to object to a particular Mediator assigned them by the Court, until they mutually agree one, of their own liking, from the Court’s many mediators. Also, the Parties choose their own law, since they agree to negotiate on their own terms – unhindered by strictures of legal technicalities, procedure and practice. Similarly, the Parties, are their own premier spokespersons (with their counsel essentially taking an advisory role). Likewise, it is the Parties’ own freely agreed terms that will drive the proceedings and dictate the decision-making. What concessions they make, what admissions they profer, and what positions they prefer, will ultimately coalesce in their own mutual settlement of the dispute. To that extent then, the Parties are the ones who write their own judgment in the case.

 

All these elements of Mediation are a notable Empowerment of the Parties.

 

Fifth, and arguably most importantly, is the Advantage of a win-win situation for every Party in Mediation. Given that Mediation is a negotiation of terms between Parties, its end result (the mutual settlement agreement of the dispute), mirrors every Party’s give-and-take; freely taken and received by the other Party. As such, each Party wins some, and loses some – to the end that all may attain a win-win position. It is for this reason that rarely, if ever, is there an appeal of a mediated case: for there is no ‘aggrieved’ Party.

 

In conclusion, Mediation offers the disputing Parties a long list of Advantages and Benefits, over and above the classical litigation.

 

 

For more information please contact:

 

The Office of the Registrar

Palace of Justice

P. O. Box 90

Maseru

Tel: 22323164

Fax: 22321375

Part VII: The Mediation Sessions

 

PART SEVEN: COURT-ANNEXED MEDIATION IN LESOTHO

 

The Mediation Sessions

The Court-Annexed Mediation (CAM) Programme is one of the new initiatives that has been introduced in the High Court of Lesotho under the Civil Legal Reform Project (CLRP), with the support of the Millennium Challenge Account – Lesotho (MCA-Lesotho) and the International Law Institute – African Centre for Legal Excellence (ILI-ACLE).

 

The last article in this series, chronicled the many advantages and benefits of Mediation over litigation as a dispute resolution mechanism. From speedy process, to cost savings; from informality of procedure, to confidentiality of the process; and from empowerment of the Parties themselves, to the win-win result of the mediation effort - all these were discussed at length.

 

The present article concentrates on what to expect at the mediation sessions – by way of procedure, process and practice.  Here, again, Mediation presents a long list and a vast variety of special features that are manifested at the sessions.  For this brief article, however, we will highlight only some of the most outstanding of these features.

 

First among these, is the feature of Informality.  The process will involve only a modicum of documents to concentrate the mind of the negotiators. The mediation forum, unlike the courtroom, will not be suffused with judicial gowns and robes, let alone wigs; nor the stern-looking marshalls and the whole paraphernalia of full-fledged court litigation.  Instead, the Parties will sit with a plain clothes Mediator, in a simple ordinary office – cosy, intimate and litigant-friendly surroundings; holding a free discussion of their matter.

 

Second, is the feature of Transparency. No official records of the proceedings are kept. Indeed, the proceedings themselves are conducted on the basis of “Without Prejudice” – meaning that whatever is said, conceded or promised by any Party in these sessions, cannot and will not bind the Parties outside the mediation effort – such as in any subsequent court actions.  This feature, therefore, encourages the Parties to negotiate and to give offers and counter-offers (including concessions), without fear of tying up their hands; or endangering their position in any future case(s) on the same matter.  Transparency is also manifested in other respects.  The procedure involves no legalese, no jargon, no Latinisms and no other mystique of language.  There are no lengthy learned submissions, and no elegant examinations and overbearing cross-examinations to assert the Parties’ opposing contentions.  Rather, the atmosphere seeks to elicit heart-to-heart negotiations – ideally led and driven by the Parties themselves (under the skillful facilitation of the Mediator) – in order to reach a mutual settlement of their dispute.

 

Third, is Speed. The Mediation sessions under the CAM are required to last a maximum of two days only.  Adjournments in the proceedings are not tolerated – envisaged only for compelling reasons.  Personal presence of the Parties and their counsel at the sessions are mandatory.  Failure to attend without good cause and prior excuse attracts payment of adjournment costs.  Moreover, those attending the sessions must be persons knowledgeable about the facts of the dispute, as well as having full authority to settle (i.e., those with authority to negotiate and to bind their Principals).  All these requirements redound to the speedy conduct of the mediation proceedings – in preparation of which the Parties are required to draft and exchange brief submissions of their respective cases, at least five days before the mediation session.

 

Fourth, the actual sessions feature a highly efficacious procedure.  The Mediator makes introductory remarks, highlighting the guidelines for conducting the session.  The Parties then make their own successive opening statements, profiling their case and their positions, on the issues.  Proceedings are then conducted in joint sessions; followed by separate caucuses, where the Mediator meets individually with each Party to concretise that Party’s position, offer or counter-offer – all which the Mediator then relays to the other Party for negotiation.  This shuttle diplomacy is handled skillfully, and continues as long as it takes to arrive at a mutual agreement, sealed in a final joint session.

 

The fifth feature, involves the process of reaching and recording the Parties’ Agreed Settlement.  The settlement is the very embodiment of the Parties, empowerment.  It is the Parties themselves who, through the series of their negotiations, craft their own terms and conditions of the settlement – assisted as appropriate by their respective counsel.  The Parties’ terms of settlement are then transformed by the Court into a formal, binding Judgment of the Court – enforceable and executable like all other Court Judgments. Indeed, since this judgment is, in truth, the Parties’ own judgment, mutually agreed by the Parties themselves, this kind of judgment is rarely appealed to any higher court – and if appealed, is rarely overturned. As such, it is an iron-clad judgment, with extraordinary certainty, finality and dependability.

 

For more information please contact:

 

The Office of the Registrar

Palace of Justice

P. O. Box 90

Maseru

Tel: 22323164

Fax: 22321375

Part VIII: Completion of Mediation

 

PART EIGHT: COURT-ANNEXED MEDIATION IN LESOTHO

 

Completion of Mediation

Over the past weeks and months, we have published a number of articles in this series, describing the process of Mediation in Lesotho. The objective of the series was to familiarize you, the reader and the general public, with this new reform in Lesotho’s judicial armoury for resolving society’s disputes.

 

The message that has been conveyed through these articles is that Mediation is an alternative to Litigation as a means of dispute resolution. It is an alternative which differs substantially from Litigation. It has in-built in its philosophy, process, procedure and practice, features that in many respects, make it superior to Litigation. In summary, these are as follows:

 

First, Mediation is an Informal process. It eschews/avoids the application of rigid rules to the solution of a dispute. Instead, it manifests flexibility, informality, and ease of process.

 

Second, and flowing from the first, it is Speedy. The whole process (from referral of the dispute to Mediation, all through its conclusion), lasts a maximum of only 30 days. Of these, the actual mediation sessions take only two days.

 

Third, it is Transparent – the proceedings aim to minimize any recourse to documentation and legalistic technicalities; and to maximize, instead, direct, informal discourse and dialogue of the issues by the Parties themselves in a litigant-friendly forum and atmosphere.

 

Fourth, because of all the above, Mediation is an Economical Mechanism – costing a mere fraction of what litigation typically costs.

 

Fifth, the procedure is the very embodiment of Confidentiality – assuring that corporate, company, institutional and individual secrets are kept intact, in spite of the resolution of a tough dispute. Mediation sessions are strictly private (not open to the public); and no record is kept of these proceedings. Only the final agreed settlement is documented.

 

Sixth, Mediation translates into Empowerment of the Parties. It is the Parties, themselves, who set the pace of the proceedings; who offer and counter-offer the elements of their settlement; and who ultimately, dictate the terms and conditions of their own Judgment (i.e. the mutual Settlement). The Mediator is but a facilitator only – without any judgment-making authority.

 

Seventh, the Parties’ Settlement – jointly signed by them – is transformed into a fully binding Court Judgment, capable of being enforced and executed: in the same way and to the same extent as all other Court Judgments. Indeed, the Settlement Judgment has, embedded in it, a feature that gives it a finality not readily found in other Court Judgments.  This extraordinary finality emanates from the fact that as a mutual agreement of the Parties themselves, the Settlement Judgment is rarely appealed; and, if appealed, is rarely set aside. Appeal is possible only in the rare case where it can be proved that the mutual settlement was, for instance, obtained by fraud or other similarly reprehensible conduct.

 

Eighth, the Parties’ mutual settlement-turned-judgment, is a win-win conclusion of the Parties’ dispute.

 

Ninth, in the event that Mediation unfortunately fails, there is then the alternative for the Parties to litigate their dispute through the ordinary court process. However, even here, the Mediation Process will have opened the eyes and ears of the respective Parties to discern a more Realistic appreciation of their respective cases: the strong points, and the weak points alike. Therefore, the ensuing litigation is likely to proceed more realistically than would otherwise have been the case.

 

From every angle one looks at it, therefore, the introduction into Lesotho of the Court-Annexed Mediation Programme (CAM) should be a welcome and refreshing reform: a worthy tool to supplement and complement the generally clogged, complex, tardy and expensive process of Litigation. Appreciation for the introduction of this beneficial reform of the Judiciary is due to the Civil Legal Reform Project, which is funded by the Millennium Challenge Corporation (MCC) through the Millennium Challenge Account – Lesotho (MCA-Lesotho), and implemented by the International Law Institute – African Centre of Legal Excellence (ILI-ACLE) supported by the Judiciary of Lesotho.

 

For more information please contact:

 

The Office of the Registrar

Palace of Justice

P. O. Box 90

Maseru

Tel: 22323164

Fax: 22321375

Part IX: Challenges To Mediation

 

PART NINE: COURT-ANNEXED MEDIATION IN LESOTHO

 

Challenges To Mediation

Over the span of two months, we have published a series of articles describing the philosophy and process of Mediation, and analyzing its advantages and benefits as a simple, speedy, inexpensive and transparent method of dispute resolution in our society.

 

The Court-Annexed Mediation (CAM) Programme is one of the new initiatives that has been introduced in the High Court of Lesotho under the Civil Legal Reform Project (CLRP), with the support of the Millennium Challenge Account – Lesotho (MCA-Lesotho) and the International Law Institute – African Centre for Legal Excellence (ILI-ACLE).

 

In this article, we reflect on the Challenges that can beset mediation – particularly so, at this early stage of the new reform effort in Lesotho.

 

First, is the challenge of Knowledge and Information about the reform. How does the ordinary citizen get to know about this reform measure, and to internalize the details of its processes, procedure and practice? To address that particular challenge, MCA-Lesotho through ILI-ACLE did design a comprehensive strategy for Outreach – aimed at publicizing the judicial reforms now taking place in the Country – including, in particular, the introduction of the CAM. The strategy has used, and continues to use the radios, the TV, the print media and other avenues of transmitting the necessary information and knowledge to the public. In this regard, plans are afoot to enhance the blitz with suitable public outreach campaigns going beyond the confines of Maseru, into the outer countryside.

 

Second, is the challenge of grappling with the Transition  - namely grafting the new Mediation branch, onto the existing vine of Litigation. A delicate surgical procedure was needed for this operation – to introduce the new tissue of Mediation into the main body of Litigation, without the new tearing apart the old, or the old rejecting the new. From the outset, the design provided for a two-tier track.  All new cases those filed in the High Court after the commencement of CAM (i.e. May 2011), would automatically follow the Mediation track – in accordance with the applicable procedural requirements for triggering the mediation process. On the other hand, the timing for referral of all cases filed prior to the commencement of CAM (i.e. before May 2011), is left to the discretion of the allocated/presiding Judge. This was intended, among other things, to minimize swamping either track with an avalanche of caseload: namely, to take the new medicine in manageable doses, so to speak.

 

The third Challenge and the most formidable remains the Acceptance of the new dispensation by all Stakeholders. These Stakeholders are many – each having a different interest in the reform. There is the Court system in general, and the High Court, in particular – whose overall interest in the reform is to minimize its burdensome case backlog (the judicial gridlock), and to minimize its case disposal (unclog the judicial traffic): and to do so with speed and justice. The Courts have fully embraced Mediation. The second Stakeholder is the general public – whose interest is in an efficient, well-functioning, confidence-giving judicial system to which they look as the fortress and refuge for the protection of their rights. From all available evidence, particularly so the public response to the Mediation outreach program, members of the public have welcomed the mediation reform.

 

The third and most critical Stakeholder is the litigant: the one whose case is either in litigation or in mediation. It is the litigant who stands to enjoy the rapture and benefits of winning or to bear the agony and burden of losing a dispute. Mediation seeks to bring a win-win result to both disputants through the medium of their own negotiation and mutual settlement, aided by a skilled impartial facilitator.

 

The fourth Stakeholder, a key one for the acceptance of Mediation, is the litigants’ Lawyer.  His immediate interest is to make a living like all professionals do and are entitled to do.  A few lawyers may get carried away with this myopic interest, and attempt to maximize their take by selfishly prolonging litigation.  These are the few bad apples in the basket that short-change the profession and themselves, by provoking a perception of a rotten reputation to the learned fraternity.  The real enduring interest of the lawyer, the one that will sustain or fail him/her in the long run, is to see justice done; to see that it is done speedily, efficiently, cost-effectively and humanely. Only then, will the lawyer win more cases, win more clients, redouble his work profile and multiply his intake of fees.  The clients, individually and collectively, will perceive of such a lawyer as having their interests as paramount. To date, many lawyers, including eminent ones, have embraced mediation and are serving the interests of their clients well.  However, a few lawyers are still unsure of which track to take for their clients.  But the clients have raised issues with that stance – to the extent of even falling out with their own lawyers, and openly reporting such fall-out. This is lousy publicity for the lawyer. It sows the seeds of an unflattering future reputation for such a lawyer from – of all people – the lawyer’s own clients. The moral of the story is that lawyers must show and appear to show fidelity to the paramount interest of their client. In matters of Mediation versus Litigation, it is quite evident that the Parties’ uppermost interests are best vindicated through Mediation – with Litigation as the choice of last resort.

 

For more information please contact:

 

The Office of the Registrar

Palace of Justice

P. O. Box 90

Maseru

Tel: 22323164

Fax: 22321375

Part X: Mediation – in Retrospect

 

PART TEN: COURT-ANNEXED MEDIATION IN LESOTHO

 

Mediation – in Retrospect

The Court-Annexed Mediation (CAM) Programme is one of the new initiatives that has been introduced in the High Court of Lesotho under the Civil Legal Reform Project (CLRP), with the support of the Millennium Challenge Account – Lesotho (MCA-Lesotho) and the International Law Institute – African Centre for Legal Excellence (ILI-ACLE).

 

CAM was introduced in Lesotho’s judicial system through the Mediation Rules of May 2011. It was officially launched in June 2011; and became operational in August 2011. Over this transitional period of three months, practical steps were being taken to put in place the requisite processes and appropriate foundations necessary to support the new reform structure. Chief among these were the necessary professional training for the designated Mediators. The training was intensive and extensive – methodically carried out by the ILI-ACLE over four substantive sessions lasting a total of four weeks.

 

Out of the 50 original trainees, a select group of nine competent and skilled Mediators have been designated, and empowered to mediate the disputes filed in both the High Court and the Commercial Court. Secondly, the transitional period was used for a hefty sensitization campaign and healthy outreach effort – with the objective of reaching all the stakeholders of this mediation reform – namely the potential Litigants, the Lawyers (in both private and public practice), the Court personnel, the witnesses, and members of the general public of Lesotho. For a concentrated period of several months, the radio, TV, print media, written articles, pamphlets and flyers, among other things, were used, to reach the target groups within and beyond Maseru.

 

The Outreach was aimed at achieving a number of objectives: First and foremost, to inform, to sensitise, to educate, to avail the needed knowledge, awareness and understanding about the mediation reform. Second, but no less important, the intensive Outreach effort, aimed to change a deep-seated mind-set. Critical in this effort was the need to change the traditional urge of the ordinary Mosotho to fight to the bitter end, without giving any appearance of caving in to a fight or buckling under a personal challenge. Unfortunately, mediation – which involves fraternal and friendly negotiations with one’s adversary, is generally misapprehended as a form of giving into concessions. The truth of the matter though is that, in reality, mediation is a high form of empowerment of the individual disputant to argue, settle, determine and judge the terms of his or her own case on a mutual basis with the opposite disputant, and to do so expeditiously, inexpensively, and confidently and confidentially without the public glare of litigation.

 

In similar vein, the Outreach effort aimed to change the mind-set, especially, of the practicing lawyer. The traditional lawyer is a full-fledged warrior, trained to fight intellectual battles in the ego-bloated drama of the Courtroom; and to expect a handsome, if not hefty, fee for his professional duels in court. These are duels and drama which are fought wholly at the expense of the client – the real casualty of the courtroom battlefield. Little wonder then that a few unscrupulous lawyers of the traditional mind-set, perceive of mediation as both unworthy and unrewarding. This is a total misconception. The facts, in every jurisprudence where mediation is practiced, prove exactly the opposite. Indeed, in this very jurisdiction of Lesotho, the nascent statistics of the last four months only, have started to tell the true tale. Over 100 cases have been referred to Mediation; with some 30 or so completed – out of which, a respectable 25% have been settled successfully. This is a small, but impressive, pointer to the potential for mediation – achieved in spite of the many teething obstables that have beset the new reform.

 

There is still work to do: more training, more outreach, more resources, better logistics. The workload is bound to pick up – given that sooner or later all cases in the High Court will be referred to Mediation. At that point the present stock of Mediators could be overwhelmed by the quantity and complexity of work – giving rise to the necessity for taking a policy decision as to whether or not to expand the lawyers’ role to include acting as Mediators. This would enhance and enrich the quality of the reform process – as the Lawyers are the critical link in the social chain of dispute resolution in any and every community. As the Mediation reform rolls into the New Year, we can all look forward to a hectic and promising take off!

 

For more information please contact:

 

The Office of the Registrar

Palace of Justice

P. O. Box 90

Maseru

Tel: 22323164

Fax: 22321375