The frequently unstructured and highly politicised context of natural resources disputes in the African mining sector differentiates them from most other commercial disputes, and this necessitates a different form of dispute resolution, dispute avoidance and resolution firm EEE Mediation MD Humphrey Harrison tells Mining Weekly.

EEE Mediation was established in 2012, specifically to create more effective ways of dealing with an expected surge in disputes involving Africa’s oil, minerals, land, water and environment.

“Litigation and arbitration are often unsuit- able ways of resolving such disputes, partly because of the excessive costs and delays involved, the adversarial nature of such proceedings, and the nonjusticiability of key considerations.

“We also realised that there were few other credible, affordable dispute management mechanisms and that very few companies or governments have developed effective dispute-avoidance procedures and skills,” Harrison explains.

The need for a service such as that pro- vided by EEE Mediation is underlined by the extent to which, for example, disputes are increasingly being shaped by factors beyond the control of companies and governments, such as climate change, environmental degradation and migration and income inequality, which highlights the need for pre-emptive, collaborative strategies.

More stringent antibribery legislation is likely to curtail the use of unsanctioned ways to settle disputes, and an increase in geo- political rivalry over access to Africa’s resources has created a much more competitive investment landscape, he adds.

“Meanwhile, the growing mood of resource nationalism is likely to assume diverse guises, many of which could trigger disputes and pose a material risk to investments, livelihoods, communities and the environment,” Harrison says.

Challenges
The African mining environment calls for a form of dispute resolution that recognises the wide-ranging and enduring consequences that the commercial exploitation of Africa’s natural resources typically has, which extend far beyond the immediate parties to the dispute in question.

Further, many groups do not have the financial resources to obtain proper legal advice, let alone try to resolve their grievances in court, and disputes are often not suitable for adjudication by a court or a tribunal.

“Factors which are not readily justici- able include disputes over perceived infringements of human, cultural and environmental rights. These can typically not be resolved in a manner similar to that of disputes pertaining to purely economic interests,” Harrison explains.

The chasm that also often exists between the parties’ negotiating strengths may unwittingly facilitate short-term ‘bulldozer’ agreements, at the expense of longer-term harmony, he adds.

Meanwhile, disputes between foreign and local parties may be rooted in profound differ- ences in cultural values and concepts, such as ownership and rights. Such disputes call for mediators to have a keen appreciation of the local context and sound political judgement, rather than only legal skills.

“African social and political structures are often far more complex than is usually apparent to outsiders. In mediations involving local groups, a much more proactive approach is required than the approach followed in disputes between companies,” he says, adding that the legitimacy and utility of agreements, which may be subject to group or public acceptance, typically hinge on the extent to which the party or parties concerned have the skills and the resources to explain the agreement to their constituencies.

“Further, the successful conclusion of a mediated agreement marks the beginning of a process, as much as the end of negotiations. Implementation is as important as the agreement itself, yet this key aspect is frequently neglected,” Harrison adds.

Other challenges faced by the African resources sector with regard to dispute resolution include inadequate dispute avoidance/management procedures; methods and skills; a lack of accessible, credible and appropriate dispute resolution mechanisms; an unquestioning acceptance of adversarial legal instincts; a lack of suitably skilled media- tors and trainers; as well as misconceptions about mediation and mediators, which is particularly evident in the widespread assumption that people who are good politicians, CEOs, lawyers or religious leaders are also good mediators, he explains.

EEE Mediation’s methods of handling African resources disputes differ from the increasingly promoted Eurocentric approach to mediation, which disregards many cru- cial considerations in avoiding and resolving resource disputes in Africa. Western mediation methods put considerably greater emphasis on process than on content and context and do not seek to command the necessary confidence and respect of local parties, Harrison says.

The company is said to be the only professional mediation provider that is focused exclusively on the African natural resources sectors; has in-depth technical, political and regional expertise; is politically and financially independent; as well as commercially orientated, which means that, since the company is not donor-funded, it has to perform and keep its clients satisfied to remain viable.

Further, EEE Mediation provides effective oversight of an enforceable set of professional and ethical standards and offers to help oversee the implementation of mediated settlements. It can bridge many of the ideological, economic and cultural barriers which typically separate foreign investors from local groups in Africa, and can also credibly claim to mediate effectively and impartially in natural resources- related disputes in Africa, he says.

Dispute Avoidance
In addition to mediation and dispute resolution, EEE Mediation also specialises in dispute avoidance.

“There is growing appreciation in the African resources sectors of the importance of dispute avoidance as a distinct organisational discipline, quite separate from the social responsibility and human resources functions. Given the astronomical cost implica- tions of so many disputes, it is difficult to think of any other expenditure which could generate an equivalent return on investment,” EEE Mediation cochairperson Courtenay Griffiths QC stated in a media release.

When attempting to avoid a dispute, EEE Mediation does a brief initial assessment of the situation to gauge the nature of the dispute and whether it is suitable for some form of mediated intervention, after which it explains the available options to the client(s) and what they might entail, Harrison explains.

“After this, the client must decide whether to resort to litigation/arbitration, or use us (or others) in trying to find a quicker, cheaper and more constructive way forward.

“Mediation is not always suitable or even realistic. However, even when it is unlikely to result in a settlement, it often greatly helps to define the issues and, thus, reduce the costs and delays involved in litigation/arbitration,” he adds.