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Negotiators must approach collective bargaining with a broader brush, then a narrow solution orientated focus. Negotiators must consider three areas of focus (the three P's) to enhance collective bargaining: People - ensuring a functional and sustainable working relationship; Process - ensuring that there is a process that is certain and accommodates the needs of the parties; and Problems in bargaining - a wider focus on understanding needs, risks and benefits before attempting to find solutions. There is very little need to reinvent the legal framework, as our current law provides an adequate framework for negotiators to craft collective bargaining arrangements that are innovative, and will seek to address some of the challenges identified in my previous post. Old habits and practices of collective bargaining do not always reflect wisdom and must be reviewed. A strategic plan to enhance collective bargaining arrangements needs to be developed and applied in all three areas of people, process and problem. I suggest a broad integrated approach to collective bargaining. THE INTEGRATED COLLECTIVE BARGAINING (ICB) PROCESS MODEL This model is aimed at developing a cohesive collective bargaining strategy to consistently measure and improve bargaining arrangements. The cohesive collective bargaining strategy, aims to evolve the people; process; and problem (see above) focus areas in bargaining arrangements, through careful facilitated change. The ICB model is best implemented a minimum of one year in advance of formal negotiations starting, and should then become a constant feature of the collective bargaining arrangement. It integrates the processes of strategic planning; capacity building; relationship building; facilitated negotiations; content management and analytical process and policy enhancement, into a seamless change process model. We used this process in co-facilitating the negotiations at the Bargaining Council for the Civil Engineering Industry and South African Airways, to beneficial effect. I provide a broad overview of the ICB steps. Step One: Selection of Independent facilitators The integrated collective bargaining (ICB) model is managed by at least two experienced; independent and multi-skilled facilitators that are trusted by the parties. Facilitators must be equipped to handle the complexity of this process and as such must possess the necessary skill and experience to manage each of the layers of the ICB model. Step Two: Initial Meeting, Diagnosis & Party Steering Committee The facilitators can tailor make the ICB process based on the specific needs of the parties and the collective bargaining environment. It is important to consider the sequence and timing of each of the processes based on an initial diagnosis. This diagnosis is done with the assistance of the parties to determine the underlying issues, concerns, complexities, demands, pressures, timing etc. A first process map and facilitators terms of reference is created with the buy in of the parties and implemented. A party ICB steering committee is also appointed to manage the ICB process with the facilitators. Step Three: Capacity Building Parties are taken through a capacity building process that seeks to develop their negotiation skills using their past experiences in negotiations as a base. This training is done in joint and separate sessions, based on the needs and readiness of the parties. The facilitators are able to develop a coaching and mentoring plan for the negotiators. In addition, further issues of concern related to past negotiations can be identified by the facilitators and raised as matters that require strategic intervention at the next process step. Step Four: ICB Relationship Building by Objectives Parties are taken through a tailored ICBRBO process that seeks to build their working relationships, diagnose areas that have impacted on the collective bargaining arrangements and to jointly agree on action steps to enhance their collective bargaining arrangements. This is documented and provided to the ICB steering committee for implementation. Step Five: Development of a Strategic Plan and Policy Framework A detailed strategic plan is crafted with the parties to implement and monitor the action steps identified from the ICBRBO. The negotiation process map, administrative requirements and a code of collective bargaining is drafted or enhanced to suite the new bargaining arrangements. This may require amendments to existing policies and procedures on collective bargaining. The steering committee, with the facilitators, are tasked to monitor and ensure the implementation of this strategic plan. Step Six: Planning for Negotiations Parties are assisted in developing a negotiation strategy or plan to implement during the negotiations. Careful consideration is given to educate mandate givers and to provide balanced expert information to the parties, to enable the parties to define their negotiation positions and strategies. Step Seven: Facilitated Negotiations The negotiations are carefully facilitated by the facilitators, to ensure that the negotiation process is implemented in an efficient, fair and sustainable manner. The facilitators serve multiple roles to the parties during this stage which may include; facilitation, mediation, motivation, coaching, content management and diagnosis. Step Eight: Post Negotiation Analysis The parties and the facilitators analyse their experience in the implementation of the ICB process and extract areas for improvement. The strategic plan is amended and a process of implementation is agreed to as soon as practically possible, before the next round of negotiations. Step Nine: Apply Consistently This process must be consistently applied for each round of negotiations to ensure that the collective bargaining arrangements evolve and improve. It is my view that the cost and time that is allocated to this process is better suited to improving the quality of negotiations rather than managing the volatility of disputes between the parties. Step Ten: Call Mediate Works Contact MEDIATE WORKS (PTY) LTD on 0871505283 for a free consultation, to discuss how we can help you to evolve your bargaining arrangements. Ebrahim Patelia CEO - Mediate Works (Pty) Ltd

I have facilitated a number of complex collective bargaining processes over my 22 years and have been involved in numerous court cases in an effort to protect the status of centralised bargaining. Collective Bargaining is currently faced with a number of challenges and have heard a number of conclusions drawn that the collective bargaining system is failing. However, is it failing as a policy? or is it failing to deliver to the constituencies that negotiators represent? or is it failing in its application by the negotiators? or is it failing due to deliberate efforts to undermine it? or is it really failing to fail? The answers to these questions will naturally depend on who you ask. My view is based on my three pillars of thinking: that collective bargaining is an essential right which must be protected in South Africa and has generally delivered positive results; that there are a number of real challenges to collective bargaining; and that these challenges can be remedied by applying strategic changes at the collective bargaining level, without any need to drastically change the policy. I present my perspective in two posts – This post will focus on the challenges and the next post will focus on an Integrated Collective Bargaining (ICB) model that I suggest can be used to great effect to enhance collective bargaining. I encourage readers to comment and share their thoughts with me on ebrahim@mediateworks.com KEY CHALLENGES TO COLLECTIVE BARGAINING Collective bargaining is generally assumed to be synonymous with differences, adversaries, violence and unreasonableness. However, to most experienced facilitators and mediators working in this field; it is apparent that the majority; if not all negotiators; like most people; prefer peace, contentment and stability. The tendency however is for negotiators to use power as the default method of bargaining. This display of power is then synonymous with collective bargaining. We live in a complex society that is grossly unequal, under resourced and impoverished. Social justice policy imperatives, are crucial for achieving change. We however have a developing economy that requires the promotion of economic development. Collective bargaining provides a crucial mechanism for trade unions and employers to achieve a collaborative ‘balance’ between the imperatives of social justice and economic development in specific workplaces, sectors and areas. The collective bargaining arrangements are however burdened with macro socio-economic and political frustrations that are felt by ordinary people. This burden influences negotiators broad ranging demands, strategies and responses. Demands in collective bargaining, thus span issues of health, housing, transport, safety and education. These are matters which normally should be addressed through government policies and interventions. In addition, domestic and International economic instability and corruption have gravely impacted on our financial security and as such contribute to a need for greater angst for economic development. The intensity of the tug of war between the widening and seemingly polarised objectives of social justice and economic development is leaving all sides bruised. These stress factors however remain, and negotiators must adapt quickly to manage the higher level of responsibility and sophistication that these adverse factors bring to the negotiating table. Collective bargaining is also faced with procedural inconsistencies. The rules of bargaining and its processes are neglected, and breaches are condoned. This contributes to a greater level of procedural uncertainty. This in turn escalates conflict and insecurity, creates a higher level of mismanagement and an erosion of trust. Collective bargaining processes must become more efficient, predictable and offer a higher level of compliance. Achieving a deal at all costs is simply irresponsible and contributes to the ‘normalisation’ of violence, intimidation and manipulation during negotiations. Negotiators must prioritise the development and sustainability of workplace relationships as much as finding sustainable solutions. A good deal is not a wise deal if it is achieved at the expense of the long-term stability of the relationship between the unions and employer parties. The long-term relationship stability between the employer and union stakeholders, is essential to providing an effective climate to tackling the issues at the collective bargaining table. The proliferation of trade unions; rapid and unpredictable changes in membership between trade unions; increased presence and rights of minority trade unions and employer organisations; challenges to established principles such as “majoritarianism”; instability in bargaining councils; changes in trade union federations; shifts in the political alliances of trade unions and inconsistent decisions from our courts, are additional pressure points being felt in most collective bargaining arrangements. The greatest concern to the stability of collective bargaining is the prevalence of extreme inter-union rivalry. In some bargaining arrangements the representative status of unions fluctuates from month to month. Trade unions are more focussed on winning over and retaining members, rather than on the quality of the negotiation process and its outcomes. Trade unions are steadily undermining their bargaining role and ability in preference of their identity and power. This has the potential of crippling any potential that collective bargaining may hold. It is proving to weaken the trade unions in the collective bargaining structures; creates uncertainty in the power of trade unions in bargaining arrangements; leaves members exposed; leads to easy exploitation in bargaining arrangements and ultimately produces poor results. Ultimately members of trade unions may find no real value in their union membership. Trade unions must get their collective house in order and engage with each other behind closed doors to resolve their issues and demonstrate a united front in negotiations. Precious negotiation time and resources are wasted on debating and retelling past bad experiences in previous negotiation processes. This is exacerbated by the lack of finality on past deferred issues. It thus frustrates any ability to focus on the present realities and challenges. Negotiators must quit stalling and provide time and space to clean up the past baggage as it is devouring any new future opportunities. I accept that the current challenges pose a real risk if not tackled strategically in every bargaining arrangement that it will result in the failure of an essential right. Check out my next post on a proposed method of enhancing collective bargaining. Ebrahim Patelia CEO - Mediate Works (Pty) Ltd

Labels are increasingly being used to leverage support for group identities and ideals. Labels such as " #WMC " (White Monopoly Capital), " #Fallists " (referring to the supporters of the University Fees Must Fall movement," #LFBF " (Land First Black First) or even " #Comrade " have deep meaning and feed strong emotion in each of us in South Africa. Internationally, US President Donald Trump has mastered the art of influencing public opinion and debate with his insidious use of labels such as " #CrookedHillary ", " #FakeNews " and " #AmericaFirst ". It attempts to create the finite divide based on the premise of "you're either with us or against us". These labels have power as they are charged with emotion, develop their own meaning, consume the medias attention, entrench differences, are used to harness support for group ideals and have proven to influence change in policies and positions. If left unchecked and unchallenged it can tip the scale toward unfair discrimination. Labels such as "Terrorist" and "Islamic Fundamentalist", have become so entrenched in dividing people, that it immediately engenders strong views of people and groups. It has contributed to major shifts in international perception of Muslims and has influenced security and policy decisions, that are at times necessary, but are often used to unfairly discriminate. As a brown skinned Muslim I am at times boxed into a group and treated as the "other" and as a threat. There is no factual basis for this conclusion. There is no voluntariness in my association to the assumed group. It is simply assumed and accepted. The experience is frustrating and hurtful. It creates a deep divide between people. Henry Tajfal in his 1979 seminal work on Social Identity Theory , found that people need to belong to a group as it is an important source of pride and self-esteem which gives us a sense of social identity: a sense of belonging to the social world. To increase our self-image we enhance the status of the group to which we belong. We thus divide the world into “them” and “us” through a process of social categorisation. The central hypothesis is that group members of an in-group will seek to find negative aspects of an out-group, thus enhancing their self-image. To achieve this we use categorisation to place people into groups, we adopt the social identity of the group we belong to and we compare our group with other groups. Negotiators and influences have mastered the art of using label's and group identity to influence outcomes to their benefit. This has become much easier with the speed at which short and catchy labels and hashtags gain traction through social media. I suggest that this practice is used with care and only when it is appropriate. Its misuse creates deep rooted and negative consequences for people that may take decades to rectify. South Africa's path to reconciliation has been a slow and treacherous journey due to the persistent and institutionalised abuse of group identity leveraged on the policy of Apartheid. The path to achieving meaningful change for a largely unequal and impoverished population is fraught with challenges. The use of divisive labels which promote differences are used more often to achieve attention and force change. I am concerned that while this may achieve the desired result it will leave deep rooted scars. Can the end really justify the means? Perhaps we need to give more attention to strengthening the constructive voice of the most marginalised people in order to influence meaningful change through legitimate processes. To put it simply we need to listen to the other side and consider the possibility of changing while always being concerned about enhancing our collective human relationship. Assumed differences and involuntary categorisation of people into groups tends to aggravate conflict and harden positions. However it is easier to manage the real differences which exist where there is a voluntary submission to a group identity, its values and its positions. I suggest that negotiators consider the following in managing differences: Enhance conflict management processes. Be aware of your own group identity. Be aware of the other parties group identity. Do not assume that a person identifies and belongs to a particular group. Be conscious of your underlying prejudice and stereotypes that will influence your perception of peoples group identity. Do not unconsciously adopt the group identity of the other group without careful thought. Be weary of attempting to break peoples real affiliations to a group identity. Use labels with care and only after strategic thought. Go beyond accepting labels on face value and learn about the people and groups. Improve your listening and speaking skills. Take more time to understand. Differences and diversity are natural and can be enhanced to achieve more value if appropriately managed.

Almost 30 years ago by sheer chance, I attended a meeting and was introduced to Divorce Mediation . For me it was a eureka! moment. I was immediately sold on mediation and ever since, have had the privilege of being involved in its propagation. I relate the story because of an appeal I make to this audience. Somebody, or a group of you I hope, will take up the cudgels for the cause of divorce arbitration with the same enthusiasm and passion with which I took up the cause of mediation all that time ago. Help to bring it about. Without doubt, to my mind there is a desperate need to introduce arbitration into the ambit of divorce for a number of reasons which I shall adumbrate. There is a major obstruction; Section 2 of the Arbitration Act of 1965 prohibits a reference to arbitration of any matrimonial cause or matter arising from it. Although the courts in two judgments namely Ressel v Ressel 1976 (1) SA 289 (W) and Pitt v Pitt 1991 (3) SA 863 (D) interpreted Section 2 restrictively its reasoning and in fact the whole rational for Section 2 is out of keeping with modern jurisprudential thinking. Therefore it will require an Act of Parliament to rescind Section 2. In the nature of things, this will not happen overnight. So what are the factors favouring the introduction of Divorce Arbitration? To begin with, we are dealing with a challenge that eats into the very entrails of society. The traditional concept of marriage as a lifelong partnership has to a significant extent been jettisoned in our Western consumer society where there is a tendency to jettison anything and everything. Clearly divorce is not the equivalent of exchanging an old for a new car (although one sometimes wonders!). We are dealing with human beings, human emotions, children and indeed the very fabric of society. If divorce is an inevitable consequence of modern living one would hope that the process would be relatively cheap, resolved in the shortest possible time and in the process attempt to lessen the human agony it induces. Understandably, few Judges relish the thought of having to adjudicate an acrimonious divorce dispute. So much time is spent on turning minutiae into major issues that it requires the patience of a Job to sit through it all. And at what cost in money and emotional trauma for all those involved! A far better procedure would be to have experienced specialists in family law presiding over divorce matters hopefully showing law with a human face, in contra-distinction to the formal rigidity and strict application of court procedures. Therefore, the first of several appeals, not necessarily in logical order, is for the creation of a body of specialists drawn not only from the legal profession but from elsewhere to preside over matrimonial disputes. This in turn requires additional training specifically in the methodology of arbitration. It is a great mistake to view arbitration as litigation by another name. In addition, there needs to be created an overseeing body; perhaps, but not necessarily, with statutory recognition in order to ensure high standards both as to training and personnel. Then there are the children. To many, the proposed scheme may cause major concern as it may be (erroneously) perceived that the court is excluded. This will not happen. The court will always retain its power as upper guardian. The functions of the Family Advocate in terms of the Mediation in Divorce Matters Act will remain in place. In order to give teeth to an arbitrator‘s award such award must be made an order of court in terms of Section 31 of the Arbitration Act . An arbitrator’s award in matrimonial matters should be made be subject to enforcement under Section 31 which by its very nature ensures that the court retains its supervisory function. Rules must be devised that are simple. Simplicity does not come easy to lawyers. The Rules should outline basis procedures and leave any contingency not covered by these Rules to the discretion of the arbitrator who, it has already been suggested will be practitioners experienced in family law in addition to being specifically trained in the methodology of arbitration. What of the right of appeal which does not exist in terms of the Arbitration Act? That Act does however permit parties to agree on an appeal procedure to an arbitration appeal tribunal – but never to the court. It is the prerogative of the parties to decide whether or not to legislate for an appeal. An appeal can never be referred to the court. Only a review for procedural irregularities can be referred to court on grounds that are strictly demarcated. Another important factor in favour of Matrimonial Arbitration is that unlike a judge an arbitrator upon appointment becomes involved in the procedure and from day one and can thereby greatly influence the pace at which the matter proceeds to trial. The result is that the procedure prior to the hearing can be substantially curtailed. It is important to expand the ambit of pleadings more than what is normally provided in court procedures. Allegations made by the claimant must set out in some detail facts on which such allegations are based. Likewise denials by the defendant should be motivated by the facts on which such denials are based. The net effect is that matters are brought to trial far more speedily that is the position in the public courts. Another consideration is that of confidentiality. Washing dirty linen in public is never edifying and limiting divorce proceedings to a hearing before an arbitrator ensures that what is confidential remains confidential and will not become public knowledge unless one or both spouses foolishly choose otherwise. Yet another great advantage of divorce arbitration is that the parties are free to agree on the choice of an arbitrator. One has been at pains to confine ones remarks to divorce arbitration without extending arbitration to family law as a whole. Primarily the reason is that there are numerous matters involving children that are and should continue to be dealt with by the Children’s Court. A reasonable conclusion it is submitted, is that there are a few matters involving divorce that cannot be adjudicated upon by a competently trained arbitrator. I am at an age when Old Father Time does not permit me to pursue the ideas I am propagating. However, I repeat, my appeal to somebody or a group of you in the audience is to take up the cudgels, drive the process and MAKE IT HAPPEN because I believe it is the RIGHT THING TO DO. Charles H Cohen Attorney – Johannesburg

Mediation is a cost effective way of solving a range of disputes, however the fees of mediators can vary tremendously due to many factors. In this post, I will attempt to describe the different factors that influence the overall cost of a mediation. When it comes to booking a mediator , you usually get what you pay for. Like with any service or product you are buying, it is important to use reputable brands and people with good references and the necessary qualifications. Mediators in South Africa are usually accredited under the DISAC standard but many other institutions offer mediation training. The qualifications and experience of the mediator will typically determine the cost of the session. For instance, divorce mediators normally practice as attorneys, psychologists or counsellors in addition to being mediators. The amount of experience these professionals have, coupled with their experience as mediators will determine their fee. Nonetheless, some mediation practitioners practice solely as mediators and their lack of an undergraduate degree or secondary profession does not necessarily mean that they are any less of a mediator. Based on this experience the divorce mediator’s fee can range from around R500 to R5000 a session. The median however, is about R1500 per session. A divorce mediation session lasts for approximately 90 minutes as they can become quite emotionally draining and spouses may need some time apart between sessions to get the necessary information to make informed decisions. A mediator would require approximately 5 sessions to finalise the divorce mediation and come to a settlement. The process is also flexible and sessions can be arranged after hours to accommodate the busy lives of the couples. Using the median as a guide a couple could pay approximately R7500 for all five divorce mediation sessions although the issues can be settled in fewer sessions and thus decreasing the total cost. Couples can decide to split the cost of the mediation upfront which consequently increases the cost effectiveness of using mediation. When a couple decides to litigate on the issues in the divorce, it may entail costs in excess of R100 000 when advocates, attorneys, candidate attorney and disbursement fees need to be paid for. Even if a couple were to use the more expensive service providers for mediation, they would stand to save a substantial amount of money and time. In any event, should the mediation fail, nothing prevents parties from continuing with the litigation process. By Ebrahim Patelia Attorney, Mediator, Arbitrator, Trainer