Confucian mediation

In cultures influenced by Confucianism (mostly in East Asia), mediation is often informal and emphasises social order, natural harmony, and moral duty. It is not the rights of the individual that are emphasised, but rather the social order and interests of the community. Often, mediators seek to persuade parties to reflect on their own mistakes, shift their focus from their own interests, and compromise for the betterment of the group.

Disputes are typically resolved through respected intermediaries, such as elders, village leaders, or senior family members. Public confrontation is discouraged, and avoiding embarrassment or shame is a key priority. Mediators aim to propose a compromise that satisfies both parties.

For example, in Japan, businesses often adopt a consensus-building approach called nemawashi, where issues are discussed informally behind the scenes before making a formal decision, reducing the risk of open conflict.

However, it also seems as though various East Asian countries are adapting the tradition of Confucian mediation to accommodate the necessities of modern day commerce, social norms and political systems. For example China, where mediation remains a very popular method of dispute resolution, has created formal mediation bodies and has enacted a “People’s Mediation Law”, which outlines the forms of mediation, qualifications for mediation and mediators, and procedures for judicial confirmation of mediated settlements.

Sulha mediation

Sulha is a traditional mediation practice deeply rooted in tribal customs and Islamic teachings on four elements: forgiveness, reconciliation, ritual and honour. Mediators, often religious or tribal leaders, or respected elders from the community, do not receive financial compensation for their role in the process.

Sulha is based on a mix of mediation and arbitration – on the mediation side, Sulha aims to reconcile differences and resolve conflict, while on the arbitration side, the decision of the mediator is final and binding. It is used for resolving various conflicts, including murder, physical assault, theft and conflict between social groups. The purpose is to resolve disputes within the community and to avoid major conflict. In Bedouin societies, Sulha has often been used to prevent long-term cycles of revenge and violence.

The process often involves compensation, public apology or gestures of goodwill, such as hosting a meal, to restore honour. Once an agreement is reached, it is considered sacred and binding.

This is a practice popularly employed in Middle Eastern communities, as well as other Muslim countries around the world. The process is officially separate from the country’s formal legal system.

Panchayat mediation and Lok Adalat

The Panchayat system is a centuries-old method of local dispute resolution in India, Nepal, Pakistan and Bangladesh. Decisions are based on customs, traditions and local wisdom rather than strict legal codes, with the emphasis on practical, fair resolutions that benefit the entire community. Mediators are typically elders or influential community members, ensuring that the process is less adversarial and more conciliatory than court proceedings.

In India, for example, mediation has historically been a preferred method of resolving conflicts and was used before the advent of law courts. It was employed to resolve civil, criminal and political disputes. Today, dispute resolution, social welfare, infrastructure development and resource management in rural India are often dealt with by Gram Panchayats. These are local self-governing bodies, comprising of selected representatives, to reflect the collective will and values of the village community. The process operates on the principles of community participation, consensus building and traditional practices.

More recently, Lok Adalat developed, which is a forum for alternative dispute resolution that is a informal, flexible voluntary and participative, and which has the ultimate the goal of encouraging settlements and avoiding litigation. While the mediators are typically retired judges, lawyers or social workers, the rulings are not legally enforceable.

India has also introduced ‘judicial mediation’, in terms of which a court can now identify circumstances in which an amicable resolution is possible, construct the terms of the resolution, and request the parties to the dispute to comment on it.

Indigenous peace circles

Many indigenous communities in the Northern Americas use traditional peace-making processes as a way to resolve disputes, promote healing and facilitate community decision-making. These processes vary across indigenous cultures, but find commonality in their use of spiritual laws, traditional medicines, ceremonies and circle processes.

Circle processes involve a talking circle, where each participant speaks uninterrupted while others listen. The circle structure promotes equality and empathy. Experienced elders, spiritual leaders or community members facilitate the discussion. There will always be a male indigenous facilitator and a female non-indigenous facilitator present, which promotes harmony, balance and inclusivity. This form of mediation follows a specific ritualistic process, which may include storytelling, objects, song and prayer.

What insights can South Africa draw from these global ‘alternative’ mediation practices?

South Africa’s traditional mediation system is deeply rooted in the Ubuntu philosophy, which emphasises community, interconnectedness and reconciliation. This approach prioritises restoring relationships through open dialogue and mutual understanding rather than assigning blame. The Truth and Reconciliation Commission (TRC) sought to harness the power of Ubuntu-based mediation in uncovering the truths about severe human rights violations during apartheid.

Our legislature has recognised the benefit of mediation and now makes formal provision for mediation in the rules of court for both the lower courts and the High Court. Although referred to as “court annexed mediation”, it remains for now a voluntary process. Parties are still free to choose mediation as an alternative dispute resolution mechanism before even involving the courts – otherwise referred to as “ad-hoc” mediation.

Mediation of commercial disputes is generally facilitated by accredited mediators, including lawyers, retired judges, psychologists, teachers, etc. While it is a completely voluntary and confidential process, aimed at resolving disputes amicably and restoring/fostering relationships, it remains a more formal manner of dispute resolution.

From experience, and despite our mediation system being rooted in the Ubuntu philosophy, we do find that our attitude towards finding solutions are often based on “principle” and individual interests.

Breaking the mind-set of “self” and the need for assignment of blame sought in most commercial disputes is difficult, and mediators may well be able to take some lessons from the older, more ‘traditional’ or ‘indigenous’ forms of mediation to encourage parties to find a resolution that benefits the greater good, as opposed to finding a ‘winner’. Important insights can be gained from the approaches in Confucian mediation, Sulha mediation, Panchayat mediation, Lok Adalat and indigenous peace circles, where the focus is on community, shared interests and moral duties. This is especially so if one considers the globalisation of commerce in an increasingly hostile and tumultuous global political environment. Furthermore, as is seen in Japan, informal discussions aimed at considering the interests of all stakeholders may be effectively used in business negotiations and commercial disputes, while simultaneously preserving business relationships and avoiding costly litigation. Viewing mediation from a global perspective serves as a great reminder not to lose sight of our foundational principles of community and harmony in the mediation process.