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  • Nerine Kahn

Are we seeing the consensus approach kicked to the curb?

In South Africa, in fact, the world seems upside-down. We live in a world where the working class masses voted Britain out of the EU, leaving the country’s leadership flabbergasted; a world where Donald Trump is now the President of the United States despite the obvious fact that he is, well, Donald Trump; and a world where students at our universities feel the only way to voice their disillusionment with those in leadership is through destruction.


How did we get here?

South African post-apartheid society was built on compromise. The process followed by the Convention for a Democratic South Africa (CODESA) negotiations embodied this value. For years, the traditional process of "finding each other" involved negotiating, finding compromises over differing needs, recognising that sustainable solutions are balanced ones, going back and forth on these, seeking a mandate, returning and – finally – agreeing. This process could be repeated several times, but it was all carried out in a space of collegiality, where negotiators and mediators approached solutions from a personable, people-focused perspective. as opposed to a robot-like approach where human values no longer apply.


As mediators, we traditionally used methods of getting all parties to ascribe to a common set of values, such as the common value of growth, working towards the sustainability and longevity of a company, or simply collaborating to minimise job losses within a sector. However, more recently, we have seen the rise of a new negotiation style. This new approach is embodied by parties like the Association of Mineworkers and Construction Union (AMCU) and emphasised by the Marikana incident and the platinum strike thereafter, where the goal of working toward a "common set of values" was set aside and a totally different style of negotiation emerged. And it is beginning to entrench itself in the national negotiation psyche.


The emerging negotiation style is characterised by a predominantly poker-faced, positional style of bargaining, where a position is taken and held with absolutely no movement or change of heart, or values bought in at any point in the negotiations. Again, one can turn to Marikana as a case study, where negotiators would not accept anything less than the original demand (and the same approach was taken in the Platinum strike).


This approach begs the question of whether leadership has any role other than to sit and hold out until the demand is met. It is as if the language of mediation, such as compromise, solution, and "meet each other half way" are totally foreign concepts in this style of negotiation. In many instances, one gets the distinct feeling that the "leaders" are puppets of the real leaders who are sitting behind the leaders who represent the "face" of negotiators.


It appears as if returning to your members to present a compromise deal is unacceptable, and trying to guide constituencies to find alternative solutions is frowned upon. In some instances, a leader may be accused of betrayal, have his leadership threatened, or even have his life endangered if he is seen to be seeking common ground. Any compromise is seen as a weakness.


Another tactic used is to demand that the most senior decision maker be brought to the table, thereby disempowering the actual negotiators so that they are not able to add value to the mediation process. This is a form of power abuse and serves to make negotiators think that such action may bring about resolution. More often than not, however, this too is futile and demands remain unchanged.


Politics and posturing for power mixed into a deadly cocktail, causing a deadlock and no further negotiations to proceed.


From what happened at Marikana, what should we learn? What should we do about the way we negotiate now that we're seeing it again in the student protests?


Have we adapted our style and applied the lessons learned from Marikana? Especially in a labour context as they relate to Collective Bargaining (CB) or existing protest structures. It is vital that we reconsider whether the traditional negotiation styles still meet the demands of modern society. Or does a new approach need to be developed?


In the aftermath of Marikana in 2012, I responded as follows in an article in Business Day and it still holds true:


“Ultimately, we have to ask: is our present LRA framework still suited to the changing union dynamics, the growing inequalities in our society, the growing social responsibilities of employers (for example, as enshrined in the social and labour plan commitments made by mining companies) and in the context of the blurred lines around the social development responsibilities of both the government and business?”


The "negotiating style" of fees must fall has many reflective issues here. What is glaringly missing is compromise. A compromise was already reached when the "2016 Fallists" were resurrected.


Perhaps the lessons from Marikana have been learned in a way history would not have intended. Rather than perceiving that solutions, mutual concessions, and intercessions need to be found in driving a joint future, have students instead learned that holding fast to their position is possibly the only way to be heard and gain a resolution?


It seems that this development is not unique to the local shores. The approach followed by "2016 Fallists" is also supported by events around the world: The recent Brexit vote signified a "lack of confidence" in leadership. Though not a violent protest, the coordinated manner in which the working class in the United Kingdom made their vote known resulted in a violent move to change leadership and a step towards independence from perceived outside influence.


Or consider the US election, where votes on policy change are driven by the PR campaign and emotions of a certain mass, to the point where this has been called the "age of entering a post-factual society." When faced with the reality of Trump becoming a Republican nominee, the masses almost immediately want to change the outcome of the vote. They have just achieved this through the use of their strong emotional and intransigent views. And now that he has been voted in as President, the world’s markets are responding in shock – again pointing to the prevalence of this post-consensus approach.


What, then, is the way forward? Has the time come after 20 years of the Labour Relations Act to review the relevance of the consensus approach? And, if so, how can we develop an approach that is sensitive to our changed (unique) local needs?



Join Nerine Kahn, former director of the Commission for Conciliation, Mediation, and Arbitration (CCMA) and previously Chief Director for Labour Relations at the Department of Labour, as she unpacks this complex issue further in our next blog post.


ERX is watching the # feesmustfall situation carefully as we hope for an effective resolution of the conflict. On a daily basis, we continue to facilitate the untangling of these very complex issues between employers and employees.


ERX is in partnership with IQ Capital and Business Rescue Exchange (BRX) to provide the best possible client outcome with an integrated service bouquet that includes business turnaround and business rescue support and advisory services.


Contact us for information on how we can bring the value of "being heard" to your business before your negotiations, bargaining, or employee relations become intractable.





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