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Protection of Personal Information Act This act applies to the processing and management of personal information. The commencement date of section 1, Part A of Chapter 5, section 112 and section 113 was 11 April 2014. The commencement date of the other sections was 1 July 2020 (with the exception of sections 110 and 114(4). The Act Aims To: Give effect to the constitutional right to privacy; Regulate the manner in which personal information may be processed; Provide persons with rights and remedies to protect their personal information; and Establish voluntary and compulsory measures, including the establishment of an Information Regulator, to ensure respect for and to promote, enforce and fulfil the rights protected by this Act. Result of Non-Compliance: Exposure to unnecessary financial and reputational risks; Adverse media publicity; Negative public perceptions; Fines issued by the Information Regulator; and Civil action by the data subject. Your Rights (as the data subject): To be notified of the collection of your personal information; To be notified that your personal information has been accessed or acquired by an unauthorised person; To establish if another party holds personal information about you, To request access to your personal information; To request the correction, destruction or deletion of your personal information. To object, on reasonable grounds, to the processing of your personal information; To object against the processing of your personal information for purposes of direct marketing (including solicitation of funding) through unsolicited electronic communication; and To institute civil proceedings regarding the alleged interference with the protection of your personal information. Visit popia.co.za/ for more details.

What is a mediator? A mediator is a neutral third party that is appointed to help people resolve a conflict. For example, if a couple wanted to get divorced and would prefer not to incur the cost of lawyers and possibly months of litigation, they would hire a mediator to assist them in their separation. A mediator, unlike a lawyer, does not choose sides or influence the decision of either party. They are simply there to listen and help the parties reach common ground. What does a mediation process entail? Here is a simple recipe to help you understand what mediation entails: An hour or two of your time for a fixed number of sessions. A spoonful of patience when entering into any conflict situation. An open mind and will to listen to the other person. Remember what is important. Mediation helps to preserve relationships. Meet the other person halfway. What are you willing to compromise on so that you can both get what you want? Why choose mediation? Consensual: both parties must agree to a mediation. Affordable: most mediators have a fixed fee for a fixed number of mediation sessions to allow you to plan accordingly. Time Effective: Unlike litigation, mediation does not go on forever. For example, divorce mediation will run for 2 hours a week for about 4-5 weeks. Who can use a mediator? Anyone can make use of a mediator to deal with a conflict. Individuals would use a mediator to resolve a conflict between the two of them. Two companies can use a mediator to come to an agreement with one another. Employers can train their staff on effective methods of mediation and how to resolve a dispute. Are you interested in becoming a mediator? Read this blog article written by our director on how to become a mediator: How can MW assist? MW offers a range of services including but not limited to: Commercial mediation Family mediation Training on how to conduct a mediation If you would like to find out more about our services, please contact our offices on 087 150 5283 or send an email to info@mediateworks.com and find out how we can help you.

In 1994 our nation defied detractors by demonstrating that a country that is committed to principles of open dialogue, reconciliation, and non-racialism can indeed peacefully transition from an oppressive regime to a democratic dispensation. South Africa, unlike many other countries that face historical issues of racial inequity, has entrenched the principles of transformation in legislation such as the Employment Equity Act and Prevention of Unfair Discrimination Act. Considering our past, it made sense that our legislators would try to enact change within our society through the law. However, despite our legislator’s best efforts to address the elephant in the room, it appears that we still struggle within South Africa and the divisive issue of race continues. According to a report from the South African Human Rights Commission in 2017, the percentage of race-related complaints increases annually and reached 69% in 2016/17. While the report may be quite dated, it is difficult to open a newspaper or scroll through social media feeds and not find some story marred by racialism. South Africa may need to re-tool its approach within the employment sector and how it tackles issues that differentiate its citizens. An idea that has been adopted by many international organisations is to tackle the issue of race and diversity head-on. Mark Zuckerberg, Founder, Chairman, and Chief Executive Officer of Facebook: "Frankly, I think [diversity is] our problem to figure out. I think that responsibility rests on us and our companies in the industry to make sure that we get to that. And there's so much research that shows that you need diverse teams to do the best work. So it's important that we do better on diversity, not only because it's the right thing to do for the country and for the people, but because that's the only way we're going to serve our community the best." Organisations such as Facebook focus on how that which makes them different, can also benefit them. Instead of approaching diversity as a bar measure that needs to be reached, it adopts a culture that embraces diversity and what differentiates us, in order to benefit the organisation. The number of studies on the benefits of diverse and inclusive workforces are numerous. The Center for Talent Innovation stated that at firms with diverse leaders, employees reported they were 70% more likely to have captured new markets in the past year and 45% said they were more likely to have improved market share in the past year. Diversity and inclusion differ from transformation and employment equity in one crucial way; while our legislation can mandate transformation through regulation, achieving inclusivity within the workplace requires a cultural change within an organisation. The question is, how does an organisation achieve diversity and inclusion through a cultural change? Organisations around the world have adopted the approach of training their employees regularly on diversity and inclusion. These training sessions focus on conscientizing employees of the cultural biases that exist within organisations and how they can be addressed. It also demonstrates the practices that can be implemented to ensure that the organisation adopts an inclusive approach when conducting business. By implementing continuous awareness campaigns that employees buy into and believe in, organisations can see a marked improvement in the output of their employees. Part of this process is to develop a diversity strategy and purposefully activate the road to inclusivity. We were recently afforded the privilege to facilitate a process of diversity and inclusion for a large multinational. The journey over the two days of facilitation was transformative for the participants. Some of the participants' comments are mentioned below: “The Diversity and Inclusion workshop is no regular ‘diversity’ course. This is a journey shared with colleagues and experienced facilitators, in a safe space, that allows you to gain a higher state of awareness of the value of diversity and inclusion in society and business.” “The course really opens up your mind and makes you think introspectively about your possible biases. It helps you understand more people and gives you a great platform to then start new thinking processes.” “This course is brilliant. It allows you to get into the heart and thought processes of people of different diversities and also helps you to introspect on your own views. It guides us really and helps all in seeing the importance of creating an inclusive environment in our workplaces. I highly recommend it.” How can MW assist? MW has a diverse panel of highly experienced experts from enquiry chairpersons, investigators, facilitators, mediators, counselors, and lawyers to assist. Over the past year, we have successfully assisted a number of companies to train hundreds of employees on Diversity and Inclusion in the workplace. MW conducts processes both online and in-person at an affordable rate. If you would like to find out more about diversity and inclusion training, please contact our offices. One of our consultants would be glad to come to your organisation to give a brief presentation on how the training can be implemented so that you have optimal impact on the operation of the business. Our training approach is designed to ensure that real and measurable change is achieved. We have adapted our processes to comply with the law, your disciplinary framework, and the need to comply with the current lockdown regulations. We use secure and efficient online platforms to deliver. Send an email to info@mediateworks.com and find out how we can help you.

What should employers know about retrenchment? Once a possibility at the beginning of lockdown, retrenchment has now become the new reality for many businesses. Retrenchment should always be a last resort, however, businesses on the cusp of folding have little option but to resort to this complicated process. Businesses must prepare themselves for the worst-case scenario and it is crucial that they comply with the law throughout the retrenchment process. Employers cannot afford the costly consequences of unfair dismissal claims. Retrenchment is a type of dismissal that is through no fault of the employee. Retrenchment occurs where businesses experiencing economic pressure may need to let some of their employees go in order to increase profits or reduce losses. Steps in the Retrenchment Process 1. Operational Requirements of the Employee Employees may be retrenched for operational requirements, which are requirements based on the economic, technological, structural, or similar needs of an employer. 2. Joint Consensus Seeking Process The employee must engage with employees and their representatives in a joint consensus-seeking process on appropriate measures; to avoid dismissals, to minimize the number of dismissals, to change the timing of the dismissals, and to mitigate the adverse effects of the dismissals, the method for selecting the employees to be dismissed, and the severance pay for dismissed employees. Those Involved in the Consultation Process: The employer must consult with one of the following parties: any person whom the employer is required to consult in terms of a collective agreement; if there is no collective agreement that requires consultation; a workplace forum, if the employees likely to be affected by the proposed dismissals are employed in a workplace in respect of which there is a workplace forum; and any registered trade union whose members are likely to be affected by the proposed dismissals; if there is no workplace forum in the workplace in which the employees likely to be affected by the proposed dismissals are employed, any registered trade union whose members are likely to be affected by the proposed dismissals; or if there is no such trade union, the employees likely to be affected by the proposed dismissals or their representatives nominated for that purpose. Written Notice Issued to Employees: In terms of section 189(3) of the Labour Relations Act, the employer must provide written notice to the other consulting party inviting it to consult with it and disclose in writing all relevant information, including, but not limited to: the reasons for the proposed dismissals; the alternatives that the employer considered before proposing the dismissals, and the reasons for rejecting each of those alternatives; the number of employees likely to be affected and the job categories in which they are employed; the proposed method for selecting which employees to dismiss; the time when, or the period during which, the dismissals are likely to take effect; the severance pay proposed; any assistance that the employer proposes to offer to the employees likely to be dismissed; the possibility of the future re-employment of the employees who are dismissed; the number of employees employed by the employer; and the number of employees that the employer has dismissed for reasons based on its operational requirements in the preceding 12 months. The consulting party must be given an opportunity during the consultation to make representations on any of these matters and any other matters relating to the proposed dismissal. The employer must respond to these representations. Alternatives to Dismissal: As retrenchment should always be the last resort, the employee has a duty to consider an alternative such as demotion. Severance Pay: Retrenched employees are entitled to one week’s severance pay for each completed and continuous year of service with the same employer. If an employee unreasonably refuses to accept an offer of employment with the current employer or another employer, the employer is not obligated to pay severance pay. Q&A for Employers on Retrenchment What are the obligations of employers? Because retrenchments are ‘no-fault dismissals’ (i.e. through no fault of the employee), the obligations upon employers are particularly onerous. In addition to ensuring that all possible alternatives are taken before retrenchment, employers must: Have a legitimate reason or cause for dismissal Define the operational requirements that the dismissal was based on Prove that the dismissal was based on a fair procedure in accordance with section 189 of the Labour Relations Act Define the facts upon which the dismissal was made in order to satisfy that it was substantially fair Must the employer issue a written notice to all its employees? Yes. Employees that are likely to be affected are those employees that may be retrenched and others that may experience changes due to the restructuring or the downsizing of the retrenchment. What must the notice contain? The notice must contain the issues relating to the proposed retrenchment and invite the parties to consult with the employer on the retrenchment with the end-goal being to reach a consensus. Do employers have to pay my employers once they are retrenched? Employees are entitled to the following relief upon retrenchment: Severance pay → one week’s pay for each year of service. If the employment contract stipulates a higher amount then this amount must be paid. Leave → If the employee has not taken annual leave, money must be paid that is equal to the number of days not taken off. Additional pay → depends on provisions in the employment contract. For example, a pension. Notice pay Is the employee always entitled to severance pay? No. The employee forfeits their right to severance pay should they unreasonably refuse to accept an alternative offer of employment by the employer. Can the employer retrench employees after lockdown? As South Africa’s economy continues to slide down into a slump, prospects of recovery for businesses appear slim. Post-lockdown, businesses may find that they have little choice but to retrench some of their employees to continue operating. Provided that employers comply with the requirements laid down in the Labour Relations Act, and retrenchments are consequently substantively and procedurally fair, retrenchments may be considered. How can Mediate Works assist? Mediate Works has a diverse panel of highly experienced experts from enquiry chairpersons, investigators, facilitators, mediators, counselors, and lawyers to assist. Ebrahim Patelia has sat as an adjudicator for CSOS for some time and has co-trained a number of the CSOS mediators through Conflict Dynamics. Mediate Works can assist in training employers on the correct retrenchment protocol. MW adapts our processes to comply with the law, your disciplinary framework, and the need to comply with the current lockdown regulations. We use secure and efficient online platforms to deliver in the instance that an on-site visit is not possible. Contact us today on 087 150 5283 or send an email to info@mediateworks.com. To request a quote, click here.

Brief Summary South African workplaces are in desperate need of diversity and inclusion training in the workplace. While overt racism may not be obvious, there are nevertheless great inequality structures and racial discrimination undertones that persist in workplaces. This creates a divisive workforce and undermines the potential South African society can reach. South Africa has one of the most liberal and progressive Constitutions in the world. The Constitution and various laws enacted to give effect to its enshrined rights, provide that all people have the right to equality and dignity in the workplace. The Employment Equity Act (“EEA”) 55 of 1998 recognises that structural racism exists in the workplace and due to Apartheid, there inequalities in the employment and labour sector. The EEA attempts to rectify this by eradicating unfair discrimination faced by employees. However, despite the law’s intervention, inequality and discrimination in the workplace continues to exist. Racial bias and racial discrimination plague workplaces to the detriment of both employees and employers. This is not a South African problem; the World Economic Forum is partnering for racial justice in business, in a recent project, "A global coalition for organisations to use their power to create just and equitable workplaces for professionals that are under-represented racially and ethnically." According to the World Economic Forum: “Racism and racial bias is manifested in current social, economic and political disenfranchisement of historically marginalized and minority ethnic groups such as the lack of opportunities, lower socio-economic status, higher unemployment and the racial wealth gap. Professionals of colour and minority ethnic backgrounds continue to face racial injustice and inequity in the workplace, and they have been severely underrepresented in leadership.” Certainly, South Africa’s situation is unique in that racial discrimination and racial bias in the workplace is targeted against a majority in this country; this is deeply rooted in our past. That is not to say that non-POC do not experience feelings of exclusion and bias in the workplace. While some companies choose to address issues of bias, racial discrimination, and exclusion, with policies of diversity and inclusion (“D&I”), it is not mandatory to offer training to employees on D&I in South African law. But should it be a requirement of the law? What do the words ‘diversity,’ ‘inclusion’ and ‘transformation’ entail? They’re thrown around in companies D&I policies, and that’s where they’re left. Employees seldom receive detailed training on D&I in the workplace. Issues of exclusion, bias, discrimination, and race are left to ferment; it is taken for granted that employees know how to interact with other employees who are different from them. The reality paints a very different picture: language, culture, and religion all act as barriers to open and honest communication and interaction. Instead of these issues being raised to management’s attention and openly addressed by companies, they are swept under the carpet. Employee training on D&I should not only include employees in the Human Resources department and all employees occupying managerial and leadership positions. A transformative workplace includes a buy-in from all in the workplace, the training should include a consultative process whereby issues faced by employees are raised and addressed by management. When considering the long-lasting and far-reaching consequences of toxic workplaces on employees’ mental wellbeing, career progression, personal growth and companies’ productivity, culture, and reputation, it makes sense for employee training on D&I policies to become the norm rather than the anomaly in companies and organisations. How can MW assist? MW has a diverse panel of highly experienced experts from enquiry chairpersons, investigators, facilitators, mediators, counselors and lawyers to assist. Over the past year, we have sucessfully assisted a number of companies to train hundreds of employees on Diversity and Inclusion in the workplace. MW conducts processes both online and in-person at an affordable rate We have adapted our processes to comply with the law, your disciplinary framework and the need to comply with the current lockdown regulations. We use secure and efficient online platforms to deliver. Send an email to info@mediateworks.com and find out how we can help you.

Brief Summary Miss South Africa, Shudufhadzo Musida, is the recent victim of cyberbullying. Social media comments suggest South Africa has a long road ahead of addressing gender-based violence and cyberbullying in society. In January 2019, Miss South Africa posted photos of herself wearing a bikini. Critics chastised her for failing to consider more important issues currently being faced by society. The Miss South Africa Organisation described the attacks against Ms Musida as cyberbullying. What does South African law say about cyberbullying and is there any recourse? No precise definition or legislation in respect of cyberbullying currently exists in South African law. However, cyberbullying can best be described as bullying or harassment, by electronic means such as a cellphone or laptop. It is “repeated behaviour, aimed at scaring, angering, or shaming those who are targeted" (UNICEF). Cyberbullying can take the forms of: Messages; Comments on social media platforms such as Twitter, Instagram, Facebook, and TikTok; Gaming platforms; Websites; Emails; Phone Calls; Video Chats; Voicenotes; Images; Videos, etc. Further clarification on cyberbullying can be found in the Protection from Harassment Act 17 of 2011. Therein, cyberbullying is described as harassment which includes “directly or indirectly engaging in conduct that the respondent knows or ought to know causes harm or inspires the reasonable belief that harm may be caused to the complainant or, a related person by unreasonably: Following, watching, pursuing or, accosting of the complainant or a related person or, loitering outside of or near the building or place where the complainant or a related person resides, works, carries on business, studies or happens to be; Engaging in verbal, electronic or any other communication aimed at the complainant or a related person, by any means, whether or not conversation ensues; or Sending, delivering or causing the delivery of letters, telegrams, packages, facsimiles, electronic mail or other objects to the complainant or a related person or leaving them where they will be found by, given to or brought to the attention of, the complainant or a related person. Recourse Victims of cyberbullying may rely on remedies in Civil and/or Criminal law. In terms of Civil Law, individuals may apply for a Protection Order in the Magistrate Court located nearest to the victim’s place of residence. An application form is provided at the Magistrate Court or can be found online here. In terms of Criminal Law, perpetrators may be charged with the following: Criminal injustice, which is the unlawful, intentional and serious violation of the dignity or privacy of another person; and Criminal defamation, which is the unlawful and intentional publishment of a matter concerning another person that seriously injures his or her reputation With the dominating role technology plays in everyday life, cyberbullying is certainly an area of law in need of development in the form of legislation and stricter regulation.

We start 2021 as we should, with hope. The positive desire of expected good is fundamental to the human existence. We have a lot to be worried about with the uncertainties of COVID-19; global-political posturing and financial destruction of the poorest of our communities. It is at the start of a new year where resolutions are often cast as coins flung into a wishing well. Now the flinging of a coin seems useless and, perhaps, the careless flinging of resolutions is pointless. The power of our thoughts and emotions is immense – it is the master of our actions. Feeling hopeless is feeling powerless to act. Hope is, however, built with careful thought and planning -this expands the boundaries of our opportunities. On the other hand, our emotions are stubborn and resist any attempt to move too quickly to rational thought. Emotions must be acknowledged and given their space, to allow for clearer rational thinking. We need space to think and analyse our circumstances, strengths, weaknesses, and opportunities. This creates an opportunity for us to build a rational plan based on realistic goals. This self-reflective journey and rational planning create the opportunity to tamper our thoughts and emotions. It starts the journey of recovery. It need not be a complete or fail-safe plan. Good plans evolve by applying prudent analysis and having the flexibility to change and adapt where required. Acting on our plans with our objective in mind allows for movement away from our current circumstances. Perhaps a critical driver of change is movement. To get any where we need to move, and we need to act. Even if we don’t get to the right place at first, it is only action and movement that allows us to move in a different path. We need to surround ourselves on our journey of hope with people that can guide us and provide us with useful feedback. Feedback, if constructive, helps us to adapt faster, checks our thinking and allows us to consider options that we may not have thought about. At MW we enter the year with many goals, and we will achieve them because, we have hope. Peace and Love Ebrahim Patelia

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