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What actually goes wrong in collective negotiations, and the moves that get a room going again It is the third session. The gap has come down from 9% to 2.5%. Everyone in the room knows roughly where this is going to land. And yet nobody moves. If you work in employee or labour relations, you have sat in that room. You have watched a negotiation that was 80% done stall for three weeks, go to conciliation, pick up a strike notice, and settle in the end at a number that was on the table a month earlier, after everybody had lost a fortnight's production, salaries and a good deal of goodwill. That is the part that stings. Not the settlement. The distance travelled to get there. In our experience the number is almost never the real obstacle. Something else is holding the room, and it is usually one of five things. Five things that stall a negotiation What you hear at the table? What is usually going on? What shifts it? “That is our final offer.” The team has a ceiling set by someone who is not in the room and has never heard the other side put its case and appreciated the negotiation dynamics. Get the mandate-holder into a session, even for an hour. Or get the mandate revisited before the next one, with the union’s argument, not your summary of it. “You are not bargaining in good faith.” A process grievance: a missed deadline, a caucus that ran two hours, an announcement made to staff while you were still talking. Take it as a process item, openly and first. Five minutes on the record beats three sessions of everybody being difficult about the wage. “Your numbers are wrong.” Two sets of figures built on different bases, neither shared before the meeting. Nobody is lying; nobody is talking about the same thing either. Agree the data before you argue about what it means. A jointly built spreadsheet is dull, and it works. “We will have to take this back to our members.” Entirely real. Your counterpart is managing a constituency that has been hearing a different version of this all week. Build report-back into the schedule instead of treating it as a delay, and agree what gets communicated jointly. “We have been here before with you people.” Something from a previous round — a retrenchment, an undertaking that was not kept, a dismissal — that was never properly dealt with. Name it. An hour spent on history can save a week on the wage. Look at the middle column. Only one of those five is about money. The negotiation you are in is rarely the only negotiation in the room. There is the one across the table, the one inside each caucus, and the one each negotiator is having with the people who sent them. When a room stops moving, it is usually because one of the other two has stalled. The ladder nobody wants to climb down When talks stick, most organisations reach for the next formal step. It is worth looking at where those steps actually sit. Where you are? Who decides? What it costs you? 1 Direct negotiation You and them Time 2 Facilitated or mediated engagement Still you and them — with help Time and a fee. Control stays in the room. 3 Conciliation You and them, with a commissioner Time — and the clock to a protected strike is now running 4 Advisory arbitration A panel recommends A recommendation you may reject, but publicly you may feel the pressure. 5 Strike or lock-out Economic power Wages, production, the relationship, and your reputation 6 Labour Court A judge Interdicts, money, months, and an outcome that is no longer yours. Every rung down costs more and hands you less control. Rung 2 is the cheapest place in the entire structure to solve a problem, and it is the rung most organisations skip. Talks stall at rung 1, and the next call is to the CCMA or a council. By then the dispute has been formalised, positions have been written down, and both teams have started preparing for a fight rather than a settlement. Why the good ones call early There is a stubborn belief that asking for a facilitator is an admission that you have lost control of your own negotiation. In mature bargaining relationships the opposite is true. The parties who use facilitation well bring someone in while they are still talking, sometimes at the start of the round, before a single figure has been tabled. What that actually looks like is less dramatic than people expect. A facilitator does not rule on anything, does not take over your negotiation, and does not sit between you and your mandate. The work is mostly: Designing the process — agenda, sequence, timelines, caucus discipline, who is in the room and who needs to be reachable when a decision is needed. Managing the temperature — catching the process grievance early, before it becomes the reason nobody will move on substance. Testing positions privately — the things each side will explore in a side room but will not say across the table yet. Holding the record — what was agreed, what was parked, what each side undertook to bring back. A surprising number of disputes are just two honest recollections of the same meeting. Keeping the relationship intact — so that whatever happens this round, you can still work together next year. The measure of a good facilitation is not that the neutral was clever. It is that the parties settled it themselves and are still on speaking terms. Three moments where a neutral earns the fee Before the round. Process design and joint preparation. Cheapest intervention available, and the one almost nobody buys. At the point of stall. Not at deadlock — at stall. The difference is a fortnight, and it is usually the difference between a settlement and a strike. After signature. The agreement is signed and now it has to survive contact with supervisors, payroll and shop stewards who were not in the room. This is where good agreements quietly fail, and where a short joint training session is worth more than another clause. A quick word on what is coming Two draft Bills were published in February this year — one amending the LRA, one amending the BCEA and related Acts. Between them they propose changes to closed shop ballots, bargaining council coverage for new businesses, strike action in essential services, and rights for workers who currently fall outside the definition of “employee”. Neither is law yet, and nobody should be advising on them as though they were. But the direction is clear enough: more parties, more thresholds, more moving parts. Relationships that are working will absorb that. Relationships that are already strained will not. Five practical tips 1 Fix the mandate before you fix the number. Most “final offers” are not final; they are the edge of what somebody authorised three weeks ago, on facts that have since changed. Before the next session, ask yourself who actually holds the mandate, whether they have heard the other side’s argument in its own words, and what would have to be true for the mandate to move. If the answer is “nothing”, say so honestly, a genuine ceiling is easier to work with than a soft one everybody pretends is hard. In the long term train, develop and expose your mandate givers. 2 Deal with the process fight before the substantive one. When a session turns bad-tempered for no obvious reason, stop and ask what happened since you last met. It is almost always procedural: a document not sent, a meeting moved, something said to the media or on the intranet. Put it on the agenda as a process item, resolve it, and go back to substance. Process grievances that go unnamed do not go away, they come back as intransigence on the wage. 3 Agree the facts before you argue about them. Affordability, headcount, absenteeism, the comparator survey — share the basis, not just the conclusion. Where the numbers differ, build one set together, even if you disagree about what they mean. Arguing about interpretation is negotiation. Arguing about whose spreadsheet is right is just time. 4 Call for help while you are still talking. The best moment for a facilitator is the moment things start to slow, not the moment they stop. Frame it to your own team and to the other side as a jointly appointed resource — because that is what it is, and because a facilitator imposed by one party starts the job half-defeated. If it helps, agree at the start of the round that you will bring someone in if you have not landed it by a set date. Nobody then has to be the one who blinked. Better still apppoint teh facilitator right at the start! 5 Draft it for the Monday morning after — then teach it. When you sign, ask a plain question: could a line manager and a shop steward who were not in this room read this and know what to do? Give the agreement its own dispute procedure, which the LRA requires in any event. Say who does what, by when. Then spend an hour taking both sides through it together. The clause you did not explain is the one you will be arbitrating in eight months. How Mediate Works can help Most of what goes wrong in collective bargaining is not a legal problem. It is a process problem, a mandate problem or a relationship problem — and those are solved in the room, early, with someone in it whose only job is to get the parties to an outcome they can both live with. Mediate Works (Pty) Ltd works with employers, trade unions, bargaining councils and public sector bodies across three areas: FACILITATION Wage and substantive rounds, restructuring and section 189A retrenchment consultations, recognition and threshold negotiations, minimum service agreements, and multi-party engagements at plant, company or sectoral level. MEDIATION Deadlocked negotiations, organisational rights disputes, grievances that have outgrown the internal procedure, workplace conflict, and disputes between unions as well as between union and employer. TRAINING & ADVISORY Negotiation skills for both sides of the table, joint training for management and shop stewards, collective agreement drafting and review, and accredited programmes for practitioners, in-house teams and aspirant CCMA commissioners. If your next round of negotiation is coming and you would rather not spend it at the CCMA, or you are already stuck and want it resolved in a room rather than in a court, let us have a conversation. The first one costs nothing. Mediate Works (Pty) Ltd www.mediateworks.com info@mediateworks.com WhatsApp This article is developed using unique ideas and researched and developed with the use of Ai. It is general commentary for practitioners and is not legal advice. Where legislative proposals are mentioned, they are draft Bills and are not law. © 2026 Mediate Works (Pty) Ltd.

The executive issue is operating capability, not policy volume The most important workplace developments of the week point in the same direction: organisations will increasingly be judged by the reality of how work is organised and how conflict is handled — not merely by the language of a contract, policy or values statement. For South African leaders, two proposals deserve immediate attention even though neither is yet law. The draft Labour Law Amendment Bill signals stronger protection against disguised employment and would expand access to the CCMA for unfair-harassment claims. International developments reinforce the same strategic lesson. Australia has introduced enforceable minimum standards for a category of platform workers who remain contractors. Acas is consulting on a less adversarial grievance and disciplinary Code that brings early resolution, reasonable adjustments and mediation into the mainstream process. Taken together, these developments support one conclusion: legal readiness now depends on conflict-system design. 1. Audit the substance of contractor relationships The Department of Employment and Labour’s 18 August explanation of the draft reform emphasises the danger of employment being disguised by contractual form. This is not a signal to eliminate legitimate independent contracting. It is a signal to ensure that classification follows the real operating model. A board or executive committee should ask for more than a list of contractor agreements. It should ask who determines hours and methods, who supplies tools, whether the person is integrated into teams and systems, whether the work serves the organisation’s clients on terms it sets, and whether the individual has genuine economic independence. The financial implications reach beyond remuneration. Misclassification may affect leave, minimum standards, dismissal rights, collective rights, contributions, back-pay exposure and forum. It can also disrupt a transaction if due diligence identifies a contingent workforce whose legal status was never tested. The practical answer is a fact-based contractor register, a risk-scoring method and an escalation route for arrangements that look different in practice from the paperwork. 2. Build one intake route for conflict, bullying and harassment The draft Bill would allow employees to refer any claim concerning unfair harassment to the CCMA. The proposal is broader than a narrow focus on sexual harassment and may encourage more complaints to be framed in legal terms. That does not mean every difficult interaction is harassment. Nor does it mean mediation is suitable for every complaint. The real capability is triage: identifying what the organisation is dealing with before choosing the response. A credible intake system should distinguish ordinary workplace friction, incivility, relationship breakdown, bullying, discrimination-linked harassment, sexual harassment, victimisation and serious misconduct. It should assess immediate safety, retaliation risk, power imbalance, evidence preservation and any need for an independent investigation. Mediation is most useful where people can participate voluntarily, understand the process and negotiate without compromising safety or statutory rights. It should not be used to suppress a report, avoid an investigation or compel a complainant to bargain over protection. 3. Require evidence of early resolution, with guardrails Acas’s draft Code is not South African law, but it offers a valuable governance model. The draft expects parties entering a formal disciplinary or grievance process to identify what has already been attempted informally or explain why no informal step was taken. It also encourages mediation and facilitated conversations where appropriate. This can be translated into a simple management discipline. Every formal referral should answer four questions: What was attempted? What was learned? Why did it not resolve the issue? Why is the chosen next process proportionate? There must be guardrails. Informal resolution is not a shortcut around procedural fairness. A conversation should not quietly become a disciplinary warning. Serious misconduct may require immediate formal action. Disability, language and other participation needs may require procedural adjustments. The goal is not to force informality. It is to prevent avoidable escalation while preserving a credible route to investigation and adjudication. 4. Watch how other jurisdictions regulate work beyond the employee binary Australia’s first minimum-standards order for on-demand delivery workers came into force on 17 August. Covered workers remain independent contractors, yet the order establishes rules on pay, records, costs, consultation, worker voice and dispute resolution. South Africa may choose a different legal path, but the operational questions are transferable. How are significant changes communicated? Can workers challenge a decision? Is there a representative channel? Can an opaque algorithmic outcome be reviewed by a human? Does the organisation have early-warning data before frustration becomes collective action or litigation? These questions increasingly matter to organisations that use labour platforms, outsourced workforces or dependent contractors — even where they do not operate a platform themselves. 5. Localise DEIB governance across borders The US Department of Labour’s final rescission of the EO 11246 implementing regulations highlights how far national approaches can diverge. The change is significant for US federal contractors, but it does not eliminate generally applicable anti-discrimination law. Meanwhile, South African employers continue to operate under a statutory employment-equity framework. Multinational leaders should resist two extremes: abandoning inclusion as a business discipline, or exporting one jurisdiction’s legal mechanisms everywhere. A better architecture has a common global foundation — dignity, equal opportunity, anti-harassment and defensible decision-making — with local modules for targets, data, affirmative-action mechanisms, reporting and enforcement. Training should help leaders make lawful decisions in context. It should not rely on slogans that obscure the actual rule. 6. Use mediation strategically in cross-border commercial disputes Mauritius’s ratification of the Singapore Convention on Mediation strengthens the African infrastructure for international commercial settlement. The Convention will enter into force for Mauritius on 17 February 2027. For executives and in-house counsel, the lesson begins before a dispute. Contracts should contain a deliberate escalation process, identify when mediation is triggered and preserve the ability to enforce a resulting settlement. During mediation, authority, the international character of the matter and the settlement record should be handled carefully. The Africa–MENA operating lens This week’s confirmed wider-African development is Mauritius’s treaty action. It matters because Mauritius is frequently part of the legal and investment architecture of African transactions, even where the underlying operations sit elsewhere on the continent. No MENA legal or regulatory change during the seven-day window met the threshold for a principal item. A relevant background signal is the UAE Ministry of Human Resources and Emiratisation’s 5 August report that it resolved 98.6% of the labour disputes it handled in the first half of 2026 amicably. That is an official administrative claim, not an independently audited measure. Its strategic significance is the policy emphasis on accessible early settlement. Businesses expanding across Africa and MENA should build local dispute routes, culturally informed manager capability and trusted escalation channels rather than impose one global grievance model. A 90-day executive build agenda In the next 90 days, organisations should: 1. Audit their highest-risk contractor and platform-worker relationships. 2. Map every route by which workplace concerns enter the organisation. 3. Create a triage matrix for conflict, harassment, investigation and mediation. 4. Add an early-resolution record to grievance and disciplinary documentation. 5. Train managers in difficult conversations, procedural fairness and escalation. 6. Localise DEIB content and decision tools by jurisdiction. 7. Review dispute-resolution clauses in material cross-border contracts. FIVE KEY TIPS FOR LEADERS Test operating reality, not labels. Ask how contractors and platform workers are actually managed before relying on the agreement. Create one front door for concerns. Employees should not have to diagnose whether their experience is conflict, bullying, discrimination or harassment before asking for help. Record the reason for the chosen pathway. Document why the matter was mediated, investigated, managed informally or escalated formally. Localise across borders. Keep common values, but adapt employment, DEIB, employee-voice and dispute processes to each African or MENA jurisdiction and culture. Measure recurrence, not only closure. A case marked closed is not necessarily resolved; track repeat issues, retaliation, delay and implementation. Policies remain necessary. But resilience is built in the moment a manager receives a concern, a contractor relationship starts to resemble employment, or a commercial disagreement becomes a choice between escalation and structured resolution. Mediate Works supports organisations with independent workplace mediation, dispute-system design, labour and employee-relations advisory work, and practical training for leaders and managers. To discuss a focused risk review or capability-building programme, visit www.mediateworks.com or email info@mediateworks.com. EDITORIAL AND LEGAL NOTICE: Prepared by Mediate Works with the support of AI, for executive information and thought leadership. It is not legal advice for a specific matter. Proposals and consultation drafts are identified as such. Organisations should obtain advice on their facts and jurisdiction before acting. Please refer to our policies.

Two things happened in South African medico-legal practice that have not yet been read together. The first is the scale of the problem. As at 31 May 2025, provincial health departments were carrying 9,567 active medico-legal claims with a combined value of just over R91 billion. The second is that, since 22 April 2025, civil matters in the Gauteng Division cannot obtain a trial date without a report from an accredited mediator. Medical negligence claims against provincial health departments are civil trials. They are squarely within the directive. For the first time, a large volume of South African medico-legal disputes will pass through a mediation process as a matter of course rather than by exception. Whether that produces better outcomes is not yet known as the scheme is young and no outcome data has been published. But the opportunity is real, and there is a decade of evidence from a comparable public health system about what determines whether it is taken. This piece is written for the four groups who will decide that: mediators, clinicians and health administrators, the state's legal representatives, and the attorneys acting for claimants. The scale of the South African problem Province Active claims Value of active claims Eastern Cape 2,330 R22.69 billion Gauteng 707 (plus 1,397 dormant) approx. R21 billion KwaZulu-Natal 1,442 R17.38 billion Limpopo 1,768 R12.08 billion Mpumalanga 1,075 R7.05 billion Free State 441 R5.82 billion North West 316 R3.75 billion Northern Cape 91 R1.34 billion Western Cape 263 R0.49 billion Total 9,567 R91.09 billion Alongside the value, the timeline matters as much. The Law Reform Commission found in 2017 that around 75% of medical malpractice claims took more than five years to finalise through litigation, with the longest recorded matter running just over sixteen years. For a claimant who is a child with cerebral palsy requiring therapy now, a settlement in year eleven arrives long after the window in which it would have done the most good. Delay is not a neutral inefficiency in these matters. It is part of the harm. What we do not yet know about Gauteng It should be said plainly: there is no published outcome data on the Gauteng directive as it applies to medico-legal claims. The scheme began in April 2025. Nobody can currently say how many directed mediations have occurred in this category, how many settled, at what value relative to the pleaded claim, or how quickly. That gap is not a criticism of anyone in particular as such schemes take time to generate data. But it is the single most important thing to fix, because everything that follows depends on it, and because the absence of evidence is currently being filled by assertion on both sides of the argument. The good news is that this problem has been solved elsewhere, and the solution is not complicated. The NHS comparison: ten years, published data The NHS Resolution in the UK has shown what the power of mediation through a designed and collaborative program can achieve. In 2016 NHS Resolution — the body handling clinical negligence claims against NHS bodies in England, launched a mediation service, contracting with the Centre for Effective Dispute Resolution (CEDR) and Trust Mediation. It is the closest available analogue to the South African position: a single large public payer, a high-volume claims environment, constrained budgets, and clinicians who must keep working while claims run. The published results are consistent over time. Settlement & Effect Reveals that 74% of mediated cases were settled on the day of mediation or within 28 days, with a similar rate of 73% reported for 2024/25. In 2024/25, NHS Resolution resolved 83% of clinical negligence cases without court proceedings, an increase from 66% in 2006/07. Less than 1% of cases go to trial, with only 24 trials occurring in 2024/25. Volume and Scale of Spend More than 2,000 claims have been referred to mediation since the scheme's inception, with 138 proceeding to mediation in 2024/25. Scale of Spend NHS Resolution paid £3.088 billion in clinical negligence in 2024/25, of which £620 million was claimant legal costs — a reminder that in this field the transaction costs are themselves a major part of the problem, and the part mediation is best placed to reduce. Two features of that record are worth dwelling on. The first is that a settlement rate around three-quarters has held steady across a decade, different case mixes, and changes of provider. That is a stable finding, not a promising pilot. The second is what participants said they valued. The evaluation records that mediation gave patients and families face-to-face explanations and apologies, and allowed concerns to be raised that “would not ordinarily be addressed in other forms of dispute resolution.” It found the process put the claimant at the heart of the claim, and that the underlying concerns were “very often not ‘all about the money’.” Tony Allen, a CEDR mediator makes the same point from the room: carefully managed direct contact between a claimant and the clinical team can produce a human resolution that a round-table meeting, with its forensic focus, tends to crowd out. He is also candid that not every claimant wants that — some prefer not to meet the clinicians at all, and a good process accommodates both. Why South Africa is well placed to use this Three features of the local position make the NHS experience more transferable than it might appear. The Law Reform Commission has already designed the framework. Discussion Paper 154 under Project 141 proposed that mediation should remain voluntary in outcome but that it be compulsory to attempt before instituting proceedings, with courts requiring parties to justify a failure to do so. It went further, proposing provincial lists of accredited mediators, pre-mediation clauses in hospital admission documents, state funding for mediation where the state is defendant, and that the state be represented by a person with actual financial authority to settle. The Gauteng directive has, in practical effect, brought the first of those proposals into operation for matters in that Division. The remaining proposals are the ones that determine whether it works. There is local proof of concept. Between October 2019 and February 2020, thirteen mediated cases saved the Gauteng health department approximately R10 million. Thirteen cases is a pilot, not a programme, and it should not be oversold. But it is a positive signal from the same department now operating under the directive. The data from the Gauteng Mandatory mediation project is highly anticipated. The claims are concentrated. With a single provincial department as defendant in most matters, a decision to resource mediation properly can change outcomes across thousands of claims at once. That is the same structural advantage NHS Resolution had, and it is the reason its scheme scaled. The justice question, taken seriously There is a genuine debate about whether compelling mediation is fair, and it deserves better than dismissal from either direction. Writing for Spotlight in 2022, Baone Twala of SECTION27 argued that the Law Reform Commission's proposals prioritise the state's interests, and that “the expectation seems to be that claimants must accommodate the state's incapacity to pay.” Where compensation is capped or converted into service undertakings, a claimant who was already harmed by inadequate care bears the burden a second time. Twala also noted that the investigation was confined to public healthcare, leaving private-sector negligence unaddressed. Emma Zeb KC, writing in 2026, identifies the practitioner's version of the same worry: power imbalances can pressure vulnerable claimants into settlements they later regret, mediation generates no precedent or public accountability, and a party can use the process tactically to test a position without any intention of settling. These are not arguments against mediation. They are a specification of the conditions under which mediation is just, and every one of them is a design question with a known answer: A claimant needs independent advice and adequate time. Build both in. A claimant needs the defendant's records well before the session, not on the day Where accountability matters more than money to a family, the process must be capable of delivering explanation and apology, not only a figure. Where a party attends without genuine authority, that must be visible on the record. Meet those conditions and the fairness objection largely dissolves. Fail to meet them and it is correct. There is a further honest point. Mediation resolves claims; it does not prevent the clinical failures that generate them. Reducing claim volume is the work of staffing, records management, referral pathways and obstetric emergency training. Mediation is how a health system handles the consequences of failure well. It is not a substitute for reducing failure, and no one should present it as one. What each group can do For mediators Accreditation under the directive's annexures is the entry requirement, but medico-legal work needs more than general accreditation. Understand the clinical vocabulary well enough to follow the expert reports. Be able to hold a room in which a family may be hearing an explanation for the first time. Design the process so that the non-monetary items — explanation, apology, an undertaking to review a protocol, care provided in kind — are on the agenda from the pre-mediation, not raised as an afterthought when money stalls. For clinicians and health administrators The NHS evidence is that what families most often want is to be told honestly what happened. Participating in that conversation is not an admission of liability, and clinicians who have done it generally describe it as better than the alternative of being cross-examined about the same events years later. Administrators can make the single highest-value change available: delegating defined settlement authority to the person who attends. For the state's representatives The Law Reform Commission identified the binding constraint and it has not moved. A mediation at which the state's representative must revert to a committee is not a mediation. Authority bands, agreed in advance and defensible to the Auditor-General, are what convert attendance into settlement. NHS Resolution's 73–74% rate is not the product of goodwill; it is the product of someone in the room being able to say yes. For claimant attorneys The concern that mediation produces lower settlements deserves a direct answer rather than a dismissal, and the honest answer has two halves. A mediated settlement may be lower in nominal terms. It may also arrive years earlier, at a fraction of the disbursement cost, without the risk of an adverse costs order, and at a point when the money can still fund the therapy it was meant to fund. Whether that trade is good for a particular client is a judgement, not a rule, but it is a judgement worth making case by case rather than by policy. It is also worth noting candidly that contingency fee structures can pull the other way, which is a reason to be deliberate about the analysis rather than to avoid it. Five Practical Tips Settle early where the case can be valued early — and be honest about when it cannot. Early settlement is the single most powerful lever in this field, because the expert layer is where the costs sit and where positions harden. But mediation convened before anyone can value the claim wastes a session and burns goodwill. The practical resolution is usually to separate the issues: mediate liability, or liability and a framework for quantum, as soon as the records are available, and reserve full expert work for what genuinely remains in dispute. Where liability is admitted, there is rarely a good reason to wait. Confirm the settlement mandate in writing before you diarise anything. Ask who will attend, what monetary authority they hold, and what approval is needed above that figure. If authority rests with a committee that meets monthly, fix that before setting a date rather than discovering it at 4pm on the day. This single step probably determines more outcomes than any other. Exchange the records and a quantum framework in advance. The commonest cause of a failed medico-legal mediation is that one side arrives unable to value the claim. Agree in the pre-mediation what each side needs — hospital records, expert summaries, care and actuarial reports, a schedule of past expenses — and set a date for exchange that leaves time to read them. Put explanation and apology on the agenda explicitly. The NHS evaluation found the underlying concerns are very often not about money. An explanation of what happened, an apology, or a commitment to review a protocol can be worth more to a family than the marginal rand and costs the department less than cash. Raise these in the pre-mediation. Establish whether the family wants direct contact with the clinical team — some do, some emphatically do not — and design accordingly. Record outcomes so the next case is easier to settle. For every mediated matter, capture the pleaded value, the settled value, the time from institution to settlement, the costs incurred to that date, and whether the state attended with mandate. NHS Resolution can point to a decade of consistent data, which is why its scheme survived changes of government and provider. South Africa has thirteen cases from a five-month window in 2019. Whoever starts recording properly now will be the one shaping this debate in three years. Mediate Works (Pty) Ltd has been an independent conflict management and dispute resolution practice since 1997. Our work includes medico-negligence mediation for institutional and individual parties. We are available to discuss process design, mediator selection and pre-mediation preparation. This article discusses public policy and legal developments and is not legal or clinical advice. Figures reflect the reporting periods stated in the sources listed below; readers should check for more recent data before relying on them. LLMs are used in the development of this blog. Review Mediator Works Policies. References South Africa 1. Muller EC, Strydom CM, Hartslief B, Truter H, Strauss PR. “Taking medicolegal mediation from principle to practice: A South African venture.” South African Medical Journal 2026;116(1). https://www.scielo.org.za/pdf/samj/v116n1/12.pdf (Table 1: 9,567 active claims; R91,090,025,324.33; as at 31 May 2025) 2. Directive on Mediation in the Gauteng Division of the High Court, 22 April 2025. https://www.judiciary.org.za/images/Directives/Directives_2025/DIRECTIVE%20ON%20MEDIATION%20IN%20THE%20GAUTENG%20DIVISION%20-%2022042025.pdf 3. South African Law Reform Commission, Discussion Paper 154, Project 141, Medico-Legal Claims, October 2021. https://www.justice.gov.za/salrc/dpapers/dp154-prj141-Medico-Legal-Claims.pdf (paras 20.7–20.8; proposals on accredited mediator lists, pre-mediation clauses, state funding and settlement authority) 4. Zeenat Emmamally, “Addressing Provincial Health Departments' Medicolegal Claims Liability II”, Helen Suzman Foundation, 15 July 2021. https://hsf.org.za/publications/hsf-briefs/addressing-provincial-health-departments-medicolegal-claims-liability-ii-transforming-litigation-strategies-and-tackling-corruption (Gauteng: 13 mediated cases, R10 million saved, October 2019 – February 2020, citing News24, 13 February 2020; 75% of claims exceeding five years and the sixteen-year matter, citing SALRC Issue Paper 33, May 2017) 5. Baone Twala, “OPINION: What the Law Reform Commission's proposals on medico-legal cases can mean for claimants”, Spotlight, 15 February 2022. https://www.spotlightnsp.co.za/2022/02/15/opinion-what-the-law-reform-commissions-proposals-on-medico-legal-cases-can-mean-for-claimants/ 6. Parliamentary Monitoring Group, “Impact of medico-legal claims on provincial health budgets and mitigation measures: AGSA & DoH briefing”, Select Committee on Appropriations. https://pmg.org.za/committee-meeting/37590/ United Kingdom 7. NHS Resolution, Mediation in healthcare claims – an evaluation. https://resolution.nhs.uk/2020/02/12/mediation-in-healthcare-claims-an-evaluation/ (74% of mediated cases settle on the day or within 28 days; participant feedback on explanations and apologies) 8. NHS Resolution, “Alternative dispute resolution”. https://resolution.nhs.uk/services/claims-management/alternative-dispute-resolution/ (providers: CEDR, Trust Mediation, CADR, St John's Buildings; Early Neutral Evaluation; fewer than 1% of cases reach trial) 9. Muiris Lyons, “A New Era for ADR in Clinical Negligence?”, CEDR, 26 February 2026. https://www.cedr.com/insights/a-new-era-for-adr-in-clinical-negligence (2,000+ referrals since 2016; 138 mediations in 2024/25; 73% settling on the day or within 28 days; 83% resolved without litigation in 2024/25 against 66% in 2006/07; £3.088 billion paid including £620 million claimant costs; 24 trials) 10. Tony Allen, “Mediating clinical claims: a mediator's eye view”, Bloomsbury Professional 2018 https://www.bloomsburyprofessional.com/uk/mediating-clinical-claims-9781526506405/ 11. Emma Zeb KC, “Mediation in Personal Injury and Clinical Negligence: The pros and cons”, Gatehouse Chambers, 6 May 2026. https://gatehouselaw.co.uk/mediation-in-personal-injury-and-clinical-negligence-the-pros-and-cons/

Discover expert conflict resolution and training services with Mediate Works (Pty). Contact us today for tailored solutions. Your Independent Partners for Sustainable Solutions. We provide transparent, fair, and bespoke conflict management, dispute resolution and training solutions for your unique needs REACH OUT W ELCOME TO MEDIATE WORKS Trusted Independent Experts Since 1997 At Mediate Works, we understand that facing a dispute can be an overwhelming and deeply stressful experience. That is why we don’t just manage conflict, we partner closely with you to navigate it. Working across both the public and private sectors, we design bespoke, "fit-for-purpose" process solutions tailored entirely to your unique challenges. Whether you are navigating court-annexed mediation, a complex commercial dispute, a workplace issue, or a sensitive family matter, our elite panel of independent experts is here to support you We pride ourselves on providing ethical, transparent, and cost-effective guidance, helping you secure swift finality and sustainable outcomes Let’s turn your conflict into opportunity! REACH OUT BBBEE LEVEL 1 CSD VERIFIED TAX COMPLIANT ACCREDITED EXPERTS Home: Services YOUR PATHWAYS TO RESOLUTION Independent Experts in Dispute Resolution Independent Mediation, Arbitration, Chairing and Facilitation in Labour, Medico-Negligence, Commercial, Family, Shariah Law and Court Annexed matters. Custom and Affordable Training Online and in-person training and development programs customised on areas such as DEIB, Law, Conflict Management, Negotiation Skills, Disciplinary Management. Labour and Business Advisory Professional advisory services to assess legal risks, guide your negotiation strategy and support your in-house Employee Relations and Legal departments in challenging times . OUR IMPACT "This course was a game-changer. It goes beyond buzzwords to deliver real, practical insight into how to build truly inclusive teams. Whether you’re a team leader or a new employee, you’ll walk away more self-aware, more empathetic, and better equipped to create a culture where everyone feels they belong." BDO DEIB Training Participant

Reach out to obtain more information on any of our services or to book a process or training or an associate. Get in Touch At Mediate Works, we are committed to offering professional support in dispute resolution, training, and advisory services. Please feel free to reach out with any questions or inquiries you may have. Email WhatsApp Web Form LinkedIn Calendar Booking YouTube

MW comprises a panel of independent experts who are skilled and experienced in various areas relating to employment law, labour, commercial disputes and other details related to Alternative Dispute Resolution, Mediation and Training. Frequently Asked Questions If any of your questions are not listed on our website, please feel free to contact us directly. Does Mediate Works facilitate workshops? Yes, MW facilitates workshops Does a mediator make a binding decision? No. The mediator is unable to make any decisions on the issues raised by the parties. The mediator is neither a judge nor an arbitrator. The mediator only controls the process. Everything said in mediation is confidential. The parties are also protected against any prejudice. However, if a settlement is reached, it is reduced to writing and signed by the parties, the agreement is binding on the parties. What are different types of disputes? - Relationship conflict - Data conflict - Values conflict - Structural conflict - Interest conflict What are the different types of facilitation? According to Schwarz, facilitation can be characterised as basic or developmental: “A basic facilitator fulfills her responsibility to the group by designing an effective process for the group to accomplish its work, acting consistently with the core values, identifying for the group when members have acted inconsistently (or consistently) with principles of effective group behaviour and letting the group make free and informed choices on the basis of the facilitator's interventions. In addition, a developmental facilitator helps group members learn how to identify when they have acted inconsistently with principles of effective group behaviour, how to explore the conditions that create the ineffective behaviour and how to change these conditions to generate more effective behaviour.” Schwarz, R. 2002. The Skilled Facilitator. A Comprehensive Resource for Consultants, Facilitators, Managers, Trainers, and Coaches, revised version. Jossey-Bass: San Francisco, CA. What are the stages of conflict resolution? - Latent - Perceived - Felt - Manifest - Aftermath What are the steps of conflict resolution? - Define the source of the conflict - Communicate with the parties involved in the conflict - Listen to both parties - Identify solutions that both parties can support - Assist parties in coming to an agreement. What does ADR stand for? Alternative dispute resolution. We however prefer appropriate dispute resolution as mediation and arbitration are equally appropriate to court adjudication. The parties to a dispute need to make a wise choice on selecting an appropriate dispute resolution process that will assist them in resolving their dispute. What does Mediate Works do? We offer independent experts that are highly experienced in managing conflict and resolving disputes through mediation, arbitration, chairing enquiries, investigating matters, facilitating negotiations, facilitating strategic sessions, facilitating consultation processes such as retrenchment (S189A), chairing meetings, facilitating RBO (relationship by objective processes) and the like. We have a niche panel of exerts that offer practical and relevant training on a range of topics. What happens in custody mediation? A mediator is appointed to assist the parents in creating a parenting plan which suits both parties. What is Sexual Harassment? 1. Sexual harassment is unwanted conduct of a sexual nature. The unwanted nature of sexual harassment distinguishes it from behaviour that is welcome and mutual. 2. Sexual attention becomes sexual harassment if: (a) The behaviour is persisted in, although a single incident of harassment can constitute sexual harassment; and/or (b) The recipient has made it clear that the behaviour is considered offensive; and/or (c) The perpetrator should have known that the behaviour is regarded as unacceptable. What is a CEDR accreditation? CEDR is based in the UK and is amongst the larger mediator training providers in the world. CEDR provides internationally recognised mediator certification. Conflict Dynamics has a close relationship with CEDR and offers its training based on the requirements of CEDR. a mediator trained by Conflict Dynamics may apply for a CEDR accreditation after meeting the requirements of Conflict Dynamics. What is a dispute? A dispute describes the stage when people involved in conflict are unable to find a satisfactory outcome. In such an instance the parties seek the assistance of a third party to assist them with an appropriate dispute resolution process such as mediation, arbitration or court adjudication. What is a negotiation plan? A negotiation plan entails planning before and during the negotiation and a consideration of yours and the other party’s needs: the motivation, risks, options outside of the bargaining range, tradeoffs and the human dynamic. What is a section 189 notice? In terms of the Labour Relations Act, the employer must issue a written notice to the employee disclosing all relevant information and invite the employee and/or the employee’s representative to consult with the employer. What is alternative dispute resolution? Alternative dispute resolution (“ADR '') comprises of different types of processes to assist parties in resolving disputes without litigation. What is an unfair retrenchment? An unfair retrenchment occurs where the retrenchment is substantively and procedurally unfair. For example, the employer may not have followed the correct procedure in that he did not consult with the retrenched employees or the reason or the retrenchment may not be based on the operational requirements of the business. What is an unfair retrenchment? An unfair retrenchment occurs where the retrenchment is substantively and procedurally unfair. For example, the employer may not have followed the correct procedure in that he did not consult with the retrenched employees or the reason or the retrenchment may not be based on the operational requirements of the business. What is arbitration? A type of alternative dispute resolution process whereby disputing parties appoints an arbitrator to hear their case. The arbitrator makes a decision on the issue; the decision is final and binding on both parties. Arbitration outcomes are subject to review and not appeal. The Arbitration Act governs private arbitration in South Africa. Private arbitration requires the parties to enter into an agreement to arbitrate. What is child custody mediation? The mediator, in the mediation process, acts as an impartial third party who can assist the parents in negotiating a child custody settlement and parenting plan. What is collective bargaining? Collective bargaining involves employer/s and trade union/s on behalf of their members negotiating for agreements on better wages or salaries, working conditions, benefits, etc. What is commercial dispute resolution? Commercial dispute resolution entails parties relying upon dispute resolution to resolve commercial disputes that arise from a transactional conflict. What is conciliation? Conciliation generally will refer to mediation. However, conciliation may have different meanings in law, countries or practice. In South African labour law conciliation refers to mediation or fact finding or advisory arbitration. In some countries conciliation may refer to an evaluative style of mediation in which a meditator may evaluate the matter and give opinions, determinations and provide outcomes for the parties. What is conflict? Conflict is a disagreement with another person. The disagreement can be based on a difference of culture, religion, belief, thought, interests, understandings, perceptions between parties. Conflict occurs when one person perceives a difference with another person. Conflict is a natural occurrence in the human experience. People should manage conflict consciously and with an appropriate approach that helps them reach the desired outcome. The approaches to conflict management includes avoidance, accommodating, competing, compromising and collaborating. What is court-annexed mediation? Court-annexed mediation is a mediation process that is part of the court processes. It may be part of the referral process to court and often requires a mediation process to have been conducted before access is given to a judge to make a decision. In South Africa Rule 41A of the High Court requires the parties to consider mediation and judges may also guide parties to mediate their disputes. In Gauteng the High Court has made mediation compulsory by its directives which provide for an enhanced Rule 41A process. If a party or parties have failed to provide adequate reasons to the court for not using mediation or the party or parties deliberately frustrate the use of mediation, a judge may make punitive cost orders against the party and or their lawyers. What is dispute resolution? Dispute resolution is a process used to resolve disagreements or conflicts between parties. What is distributive bargaining? Distributive bargaining, also known as zero-sum negotiations, is a negotiation strategy where one party gains only if the other party loses. The ultimate aim is for the parties to respectively try to gain the maximum share from the resources or assets that need to be distributed. What is facilitative mediation? Facilitation mediation is a style of mediation characterised by an Independant mediator guiding and assisting the parties to come to a solution. The mediator will not make any decisions that relate to the substantive and legal issues between the parties. The mediator controls the process and leaves outcomes to the parties. The mediator does not deliberately focus on restoring the relationship between the parties. The parties may raise this as an important issue and a such will be considered as one of the issues to facilitate. What is family dispute resolution? Family mediation process whereby the appointed mediator assists the disputing parties reach an agreement on family related disputes. In divorce or dissolution matters issues of parental rights and responsibilities, the distribution of assets and liabilities and issues of maintenance form the issues for the mediation. The mediator will not make any substantive decisions for the parties. The mediation usually takes place over 4 or 5 two hour sessions which are scheduled a week or two apart. What is integrative negotiation? Integrative negotiation, otherwise known as integrative bargaining/interest-based bargaining/win-win bargaining, is a negotiation strategy where parties compromise and bargain to find a solution which satisfies each other’s needs and concerns. What is litigation? The referral of a matter to court for a judge to make a decision. Litigation includes the parties following the formal court procedures defined. What is mediation? A type of alternative dispute resolution process whereby an Independant third-party assists the disputing parties to resolve a dispute by enhancing the quality of their negotiations. The mediation process is controlled by the mediator who will guide the parties through joint and sperate meetings. The key principles of mediation are confidentiality, without prejudice, the parties control and determine the substantive discussions and outcomes, the mediator controls the process, the parties participation and continuation in the process is voluntary. Mediation may be imposed by the law or may be used as a voluntary process that the parties agree to use. What is negotiation? Negotiation involves an engagement between two or more parties with the purpose of reaching an agreement that is binding. Effective negotiations will ensure that the process, people and issues (problems) are equally attended to. There are different approaches to negotiations and different styles of negotiations. The two styles of negotiation are positional negotiations and interest negotiations. What is private arbitration and mediation? Private mediation and arbitration involve the parties voluntarily agreeing to mediation or arbitration through a written agreement rather than being forced into the process through a statutory provision (law). This can be done at any stage, and the parties can agree to the mediator or arbitrator of their choice and also the terms of reference and powers that will apply. These processes take place at the parties convenience. The parties pay for the costs of the mediation in equal proportions unless otherwise agreed to. What is retrenchment? Retrenchment is a no-fault dismissal occurring as a result of an employee’s operational requirements. What is the dispute resolution process? Dispute resolution refers to several processes used to resolve conflicts. These include mediation, arbitration, facilitation, investigations, relationship building by objectives, court adjudication and the like. What is the role of a mediator? A mediator is an independent third party that assists and guides parties towards their own solutions to their dispute through enhancing the quality of negotiations. The mediator controls the process and ensures that the principles of mediation are abided to during the mediation. What is the role of a mediator? A mediator is an independent third party that facilitates the negotiations between disputing parties. The mediator will use their skills and the process to enhance the quality of the negotiations between the parties in a way that improves the understanding of the underlying needs and concerns, create opportunities to generate options, facilitate the negotiations/bargaining and option selection between the parties and assist the parties to finalise an agreement where required What is transformative mediation? Transformative mediation is a people-centric approach to resolving disputes. It stands in opposition to problem-solving mediation, which focuses on resolving specific disputes between parties and finding an amicable solution to the immediate, short-term, problem at hand. Transformative mediation focuses on the empowerment and mutual recognition of the parties instead of finding a solution to an immediate, short-term, issue. What is workplace mediation? Workplace mediation is a confidential and voluntary process utilised by organisations to address conflicts that arise in the workplace. For example, the need for mediation may arise due to bullying, harassment, or grievances. Organisations appoint a mediator to assist the parties to understand the issues and reach a mutually benefitting agreement. Workplace mediation also has a focus on restoring the relationship between the parties as far as possible. What is workplace mediation? Workplace mediation is a confidential and voluntary process utilised by organisations to address conflicts that arise in the workplace. For example, the need for mediation may arise due to bullying, harassment, or contractual disputes. Organisations appoint a mediator to assist the parties to understand the issues and reach a mutually benefitting agreement. Who qualifies as a certified mediator? A person must complete a recognised mediator course of at least 40 hours with practical assessments. There is no law defining this. However, DISAC and NABFAM are voluntary professional organization which accredit mediation training. in the future there will be one accreditation body recognised. The quality of mediation training differs in South Africa. Check whether the training is certified by DISAC, NABFAM and/or the IMI. Mediate Works recommends mediator training offered by Conflict Dynamics.