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Frequently Asked Questions: Conflict Management
In which cases will the Minister authorise an intervention?
Section 22(1) of NEMA provides the following guideline for assessing Requests:
“(1) Decisions under this Act concerning the reference of a difference or disagreement to conciliation, ....and the conditions of such appointment, must be made taking into account -
(a) the desirability of resolving differences and disagreements speedily and cheaply;
(b) the desirability of giving indigent persons access to conflict resolution measures in the interest of the protection of the environment;
(c) the desirability of improving the quality of decision making by giving interested and affected persons the opportunity to bring relevant information to the decision-making process;
(d) any representations made by persons interested in the matter; and
(e) such other considerations relating to the public interest as may be relevant.”
The “other considerations relating to public interest” that may be relevant include:
- Does the dispute concern a priority or urgent environmental issues.
- Is the dispute a public matter? Public funds are less likely to be spent on a dispute between parties in which the public has no interest.
- Will it protect the environment or assist with environmental management.
- Costs of any proposed intervention vs benefit to the public.
- Cost effectiveness of any proposed intervention. Where a matter is likely to escalate into expensive litigation, then an intervention may well be cost effective.
Who will mediate my case?
Only mediators who are properly qualified and accredited will be appointed to mediate cases in accordance with NEMA Chapter 4. Accreditation standards are currently being finanlised. (As a general guideline the standards set by the National Dispute Settlement Accreditation Council may be viewed)
The ideal is that the mediator must be selected by the parties. The parties will have an opportunity to indicate their preference regarding the choice of mediator, and where there is agreement on this, that person will be recommended to the DG for appointed.
Where agreement regarding the choices of mediator cannot be reached, the independent process administrator will recommend an appointment to the DG.
Who is the "independent process administrator"?
The Department will from time to time appoint qualified and experienced process administrators to take care of the administration of mediations and arbitrations.
The Department is potentially a party to any environmental disputes, and accordingly does not want to administer these cases internally, as this may influence parties' view regarding the independence of the process.
Who will pay for the mediation process?
When the Minister authoises an intervention he will stipulate conditions regarding payment for the process. The Minister may stipulate that:
- The Department will pay for the process (up to a specific amount)
- The Department will contribute to the costs
- The parties should pay for the process
The Minister's decision in this regard is likely to be influenced by the extent to which the resolution of the matter is in the public interest.
Why should I tell the Mediator the details of my case?
It is important to understand that the mediation process is:
- Confidential: This means that anything you tell the Mediator is for his ears only. He may only disclose such information to the other party on your express authorisation.
- Without prejudice: This means that any confidential information that is disclosed in the mediation process cannot be repeated afterwards - not even in Court.
By telling the mediator the full details of your case, you enable him to get a proper understanding of the matter, and this allows him to clarify the communication between the parties, and to suggest alternative solutions to the problem.
And you are not in any way worse off - if the mediation does not work, you have retained all your legal rights.
Can I refuse to participate in a Mediation?
The parties are not asked to consent to the mediation process.
Where the Minsiter authoroses an intervention, the mediation will go ahead. You are of course at liberty not to attend these proceedings. However your non-attendance will be reported by the Mediator, and may count against you at a later stage.
Can I bring my lawyer to the Mediation?
Parties must attend mediation proceedings in person. You are however encouraged to bring your lawyer with - if you have already appointed one. Your lawyer should understand the process, and will assit you in making informed decisions during the mediation.
What happens if the Minister does not authorise an Intervention?
In such cases mediation remains available to the parties. They can still refer the case to mediation.
There are a number of reputable private organisations that will facilitate such a process on their behalf.
These inlcude:
- Tokiso Dispute Settlement (http://www.tokiso.com/)
- Equillore (http://www.equillore.com/)
- The Association of Arbitrators (http://www.arbitrators.co.za/)