Tribunal impartiality holds key

PREVIOUSLY, we looked at the mediation process of the provincial rental housing tribunals (disputes mediated in terms of the rental housing act, 13 August 2019). This article looks at a mediator whose one-sidedness affects the parties to a dispute and the integrity of the tribunal.

A mediator is appointed to resolve an unfair practice dispute. Section 13(2) (c) of the rental housing act states that where the tribunal is of the view that there is a dispute, such dispute may be resolved through mediation. The tribunal must appoint a mediator, who may be a member of the tribunal, a member of staff or any person deemed fit by the tribunal, with a view to resolving the dispute.

An essential requirement is for the mediator to remain impartial. The mediator does not take sides and conducts her or himself in a professional manner with all the skills required, avoiding any suspicion of a bias.

A member (commissioner) of the rental housing tribunal often mediates, but, as a mediator, is a third party neutral without being able to give a ruling or make a decision. Should the mediation fail, the complaint is referred to the tribunal for a hearing.

Ideally, the mediator, being privy to the “evidence”, should not form part of the panel of commissioners and does not provide any information to any party, not even the tribunal.

Any bias, prejudice or misconduct may tarnish the neutrality and objectives of the tribunal.

A tenant who was given a 48 hours’ notice could not lodge a complaint with the tribunal because of the perception of bias on the part of the tribunal. The context of this perception reveals that, in fact, the mediator, who was also a commissioner, did indeed violate the fundamental principles of mediation and rules of natural justice.

Accordingly, the mediator compromised the impartiality of the tribunal.

The tenant lodged a complaint of an unfair practice relating to a notice to vacate that was given telephonically. The notice emanated from a dispute about the payment of rates, in addition to the monthly rental.

The mediator had to get parties to focus on the nature of the dispute, the underlying reason for the conflict and to guide parties on the legal principles and the relevant provisions of the law.

A successful conclusion would result in a mediation agreement signed by the disputants; the mediator’s signature would be that of a third party neutral. In this particular instance, an agreement was concluded but seriously compromised the tribunal.

The agreement should have dealt with the issue of the payment of rates and that the notice to vacate was either valid or did constitute an unfair practice. Under common law, it is the owner’s responsibility to pay rates and other municipal service charges but in terms of a written contract, the tenant may agree to pay a portion of the rates or the total amount.

The tenant-complainant signed a mediation agreement that contained one paragraph recorded by the mediator to the effect that the landlord issued a proper notice in his presence. The notice was drafted by the landlord and handed over to the tenant on the apparent advice of the mediator. The mediator thus became a biased party and acted indirectly as a “sheriff”.

The tenant was confused but signed the agreement. Two days later, the tenant was given a 48 hours’ notice for not paying the rates. She was reluctant to approach the tribunal. She realised that the mediator did not resolve the dispute nor referred it on to the tribunal for adjudication.

The support staff, mediators and members of the tribunal must conduct themselves as a magistrate or a judge does. They do not enter the fray, but conduct themselves as an objective, third party neutral.