Fair Cape Mediation

Fair Cape Mediation The activities of this practice are based on a philosophy of joint solution finding. I am a non-practising High Court advocate, holding the B.Juris LLB degrees.

More specifically, the objective is to work with parties to find the best solution for conflict and potential conflict situations. Good negotiation skills, based on a principled process, remain one of the best tools to pre-empt conflict. Structured mediation has proved to be the most expedient and cost effective method to solve existing conflict situations. Cooperation and complementary activities

are the main pillars on which highly productive organisations and societies operate. Douw Krüger: I am accredited by the University of Cape Town’s UCT Law@Work unit and by Mediation in Motion (MiM) as a Commercial Conflict Mediator since 2015. In addition, I completed a course in the Psychological Aspects of Mediation at the Hochschule Wismar, University of Applied Sciences, in Germany.

17/10/2018

What are the secrets of a successful mediation process, if any?
The main secret is proper preparation by all participants. That may be summarised in a few points:
- Get out of litigation mode into problem solving mode
- Accept that blaming and judging is counter productive
- Understand the other side's issues and emotions
- Summarise the issues - understand the big picture

Good preparation can save the day.

11/12/2017

The main benefit that a joint search for a win-win solution (eg. via mediation) has over a win-lose (often lose-lose!) process, is that it creates room for out-of-the-box-thinking.

After the fall of Sadam Hussein in Iraq, displaced farmers in the south of the country formed a cooperative to lease arable land from the government. They used their savings to plant crops. Only a few months later oil was discovered there and they were ordered to immediately vacate the land, in line with the fine print of their lease. The farmers refused to leave. The oil company had the law on its side and when their threats had no effect, the army was called in. Bloodshed was averted at the last moment when a mediator was called in and the real interests of the parties were uncovered. It appeared that oil production would only commence in three years’ time and therefore the current crops could be harvested without posing a problem. Furthermore, the oil company wanted to hire many of the farmers during the construction phase. After proper consideration, it also appeared that crops in between the oil derricks would be acceptable to the oil company.

It sounds so easy. However, as long as parties remain locked into positions (focussing on rights and obligations), their minds remain in-the-box.

15/11/2016

Recently, a lawyer friend remarked that adversaries typically have to go through the whole process of claims, threats, final demands, summonses, even trial; before they turn to mediation. Many people will disagree that this an inevitable part of the process. But it is true that this is what is happening most of the time. What a waste of time, money, emotions and relationships! And then the end result is often very unsatisfactory.

23/10/2016

Question: What is the real difference between litigation and conflict mediation?

Litigation is an adversarial process whereby parties sue each other to either yield to demands (claims), or to defend their position in court and subject themselves to a verdict by a presiding officer. The process is time consuming, can be very costly and often leaves both parties unsatisfied.

Mediation is a process of facilitated negotiation where parties are assisted by a mediator to find a solution that is mutually acceptable. Without exception the costs of mediation are far lower than the costs of litigation. In most cases the matter is finalised within weeks, rather than months or years

22/10/2016

How does Negotiation Skills Development fit into the process?

When negotiating parties adopt a win-lose approach (which is the natural line taken by most people), a number of things can happen. The relationship may suffer, conflict may escalate, sub-optimum agreements may be reached, the process may break down, etc. The end result may be frustration, poor implementation, or even litigation or a need for Mediation. Properly integrated win-win negotiation skills can go a long away to managing conflict productively as described on the website www.fcmediation.co.za.

22/10/2016

If Mediation is "almost always" the best way to find a solution to a conflict, then it means that there are in fact situations that Mediation cannot resolve,... or not?

Yes, there are. When a party acts in bad faith, or is looking for a loser, then the process of joint solution finding (Mediation) may be compromised from the start. However, even in these cases, the offending party may discover along the way that there are alternative solutions which are acceptable to him. The Mediation process has virtually no downside.

21/10/2016

Is Mediation always the best way to deal with a conflict situation?

The best answer is "almost always". When the legal position is quite clear, one of the parties may be reluctant to subject the process to Mediation. On the other hand, Mediation may be a good way to ensure cooperation and proper compliance with an established legal position, as it also deals with the "how" and "when" and can add flexibility and alternatives to the ex*****on process.

In practice one will find that very few conflict situations cannot be mediated successfully. However, one of the main obstacles is that initially parties tend to be emotionally charged about the matter and about the counter party, and they often focus on victory rather than on the best solution. When the matter is eventually subjected to Mediation, any emotional damage has to be undone first before progress with the actual issue is made.

20/10/2016

And what are the costs implications of Conflict Mediation?

Normally costs are shared equally between the parties and mainly depend on the time taken to arrive at a solution. However, in most cases a mutually acceptable solution is found within a day or two, at a typical cost of R3000 to R10000 per party.

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Durbanville

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