Caught between blunt objects and bloody fights

I REMEMBER Professor Barney Jordaan from the turbulent late 80s when student protests swept across the University of Stellenbosch campus.

He was one of the leftie academics — a law professor with an office in the historical old law building but also involved in human rights work at the law firm Chennells Albertyn.

Thirty-four years later, many cogs have turned. He is now a mediation specialist and a professor of negotiation at Vlerick Business School in Belgium (but also still a professor extraordinaire at Stellenbosch).

“It only means that I am not on the permanent staff," he laughs. “Not that I am extraordinary."

He speaks to me on Zoom from Belgium and turns his laptop screen so I can see the seminar room where he is sitting. Blond wood, clean lines and good lighting. Modern yellow and red furniture.

It is a far cry from the dusty Stellenbosch Advice Office with its cheap plastic chairs where Jordaan was the chairperson in the 80s.

Dialogue works

“I've always loved the law but I've never liked the process," says the guy with a PhD in law.

“In that time at the advice office, it was already clear to me that the law is okay if you have rights, but if you are poor and oppressed and have no way to exercise those rights, then the law does not help you.

“The cases we dealt with were, for example, people who had been evicted from farms, people who were fired because they had taken part in a protest, people who were arrested by the police and held without trial. In cases like that, the law is a blunt object.

“You have to use other processes to help people. Dialogue. Mediation. Instead of threatening legal action, trying to talk to people on a human level. And if you can get them to listen, then you can go a long way," says Jordaan about how his interest in mediation, negotiation and conflict resolution first took root before they became his speciality — as an academic, an internationally accredited practitioner and a trainer.

Europe

I want to know about the journey that took him to Belgium. He lives in Leuven and teaches at Vlerick's campus there, but there are also campuses in Brussels and Ghent.

“My wife is Belgian, and everyone thinks I'm here because of her, but I had to drag her away from South Africa when Vlerick offered me a position in 2014," he says.

“At first, we saw it as a six-year adventure, but when my daughter, who was then about 14, told me she was so happy here because she felt safe, it hit me between the eyes.

“And then they started studying here, and our Europe project became open-ended."

But he struggled for a long time with a sense of belonging.

“I still get a lump in my throat when I listen to Avondland by Koos Kombuis and Stef Bos because that question of where you fit in stays with you for a long time.

“Then, a year or so ago, I was in a nature reserve and started talking to one of the Zulu guides about it. And he said we have three homes: The one where our umbilical cord is buried, where we were born. The one where we grew up. And the one where we live. And it brought me peace. We can belong in different places. My life is neither one nor the other. It's both."

Jordaan still works in South Africa and his two eldest children live here. He is involved in Black Umbrellas, Cyril Ramaphosa's organisation for black entrepreneurs, and heads a leadership course at Stellenbosch University's business school.

Getting people on the same page

“In conflict management, how a conversation starts is critical for its outcome. There is research from the Gottman Institute that looks at conflict within marriage, but it is applicable more broadly.

“They found that how a difficult conversation ends is determined in the first three minutes. Those first few minutes are critical to calm the situation and build a bridge between the parties. If it is not handled correctly, you end up with a spiral of conflict."

Jordaan has been a mediation practitioner for 33 years.

“Ultimately, the big secret is that people want to be heard. This is one of our greatest needs. To be heard. And to be respected. If you can get those two things right, you can go a long way to defuse conflict.

“People don't have to be on the same page, but you have to try to get them to understand each other's pages. And for that, you have to neutralise the fear that the other has hostile intentions."

Interpersonal skills

Jordaan regularly does mediation work. In the business world. Between trade unions and employers. Between colleagues in the workplace. Marriages.

“The most hideous disputes always come when people react impulsively and instinctively instead of using the pause button in their brain."

Some of the worst conflicts, he says, are in family businesses.

“When money is involved, it can get bloody, bloody, bloody. It can tear families apart.

“It's also about basic interpersonal skills. People talk about them as the soft skills. I hate that term because it's one of the hardest things to learn and apply. If we do that, we can improve the world; without it, we are left with war."

The instinctual brain

“One of the significant hurdles that stands in our way is how our heads work. The brain is Teflon for good news and Velcro for negative information. That negativity bias makes us first think the worst about other people and expect the worst from a situation.

“I see more and more that people get stuck in that thinking. South Africa is full of it, and if you look at the Americans, you think how divided that country is because of how people think.

“It's not even a case of thinking correctly; it's just instinctive behaviour that takes over before the thinking brain is even given a chance to look at all sides of the matter before forming an opinion.

“Social media also plays a role in all the nonsense people speak. People no longer formulate proper arguments. It's just one-liners, so many characters, and there's your opinion.

“I see it even with people I train here. Many are very senior people, yet those primitive thought processes still come through. Daniel Kahneman refers to it as ‘System 1 thinking' — fast, instinctive, emotional. Instead of ‘System 2' thinking, which is slower, more considered and logical. So maybe [Elon] Musk should just come and save us with his brain chips," laughs Jordaan.

Conflict entrepreneurs

Jordaan would like to see mediation and dispute resolution used more in the legal profession. His book Negotiation and Dispute Resolution for Lawyers is about precisely that.

“I believe lawyers can make a big contribution to less confrontational dispute resolution, but generally they don't. Of course, some guys do, but the question is, why don't we do more of it?

“I read a reference to the legal profession the other day as ‘conflict entrepreneurs', and I think the root of that lies in our legal training.

“In litigation, there is this binary way of thinking — either/or. And that is conflict. We don't think and/and. It's black or white. In the legal system, the algorithm Law + Facts = Justice applies, but that justice is a win-lose justice; someone wins, someone loses.

“The problem is that even if you win your case, you lose time, stress, money, relationships and reputation.

“And even where negotiation is possible, we have the problem that legal education does not focus on the necessary skills. Lawyers are not taught how to work in a more problem-solving way rather than an oppositional one. It's me against you, my client against your client, as if we are standing litigating in court. And then, of course, the legal profession is still ruled by billable hours, so the more hours I can book, the better for me."

Pressure on the courts

“Mediation is often seen as something soft. Sometimes, clients say, ‘Don't even talk about negotiation — I want to destroy the other guy,' but I don't think it happens that often.

“Many times, a client is dragged into a process where they lose control not only over the outcome but also over the process's duration and cost.

“I have trained many lawyers as mediators. As a lawyer, this skill is an extra string to your bow. Not only can you litigate, but you can also advise your client better about mediation. You can also mediate. And if you can help your clients resolve their disputes more effectively, faster and cheaper, it strengthens your reputation. I see no downsides. But there is still a long way to go to change the mindset that litigation is the only option.

“By using mediation, certain disputes could be taken out of the long and arduous court process, reducing the massive pressure on courts."

It is not only in South Africa where there are such long waiting times for court dates. Jordaan says it is the same in Europe.

“There is a European Justice Scoreboard that comes out annually and says how long disputes take in different countries to go to court. It can sometimes take up to five years. Imagine you are a business in dispute with a supplier and you even have to wait just a year. What are the implications for your business? I know there is a great need for mediation in Europe, America and India, but legal systems are conservative and slow to adapt."

Coalition politics

I ask Jordaan if mediation and conflict management principles could be applied to help the emerging but still shaky phenomenon of coalition politics in South Africa.

“It is probably the most democratic way to conduct politics if no one party dominates, but for this to work, trade-offs are necessary. And even here in Belgium it's a mess because, ultimately, it's about power — me, my power and my party. And that equals conflict.

“But to answer your question, yes, it can. The question is, how do we deal with conflict most constructively?

“In an ideal world, my first advice to any political parties working on the type of pacts and coalition governments that are now emerging in South Africa would be to invest in a course in conflict management.

“Because if conflict is handled correctly, it can lead to better understanding and innovation. It can help people see each other. To build rapport. But if it is not handled correctly, it becomes personal, and then it is no longer about what is in the country's interest but about fighting for your own interest and territory. Conflict training is essential, because without it the tower will wobble over and over again.

Backstories

In the week before our interview, Jordaan sends me an e-mail. It is about something in my Sunday newsletter.

“That last paragraph of yours about kindness, respect and empathy for others is relevant to our conversation."

I want to know what he meant by that.

“We've already talked about how important it is to see each other. I often think about the African greeting of ‘sawubona', which is saying ‘I see you'. It's much more powerful than ‘Hey, how are you?'

“But there's something else too. Every person has a backstory. Behind the ego is a backstory. Behind the anger is a backstory. Behind the person’s refusal to respond to my calls is a backstory. And the trick is to understand what that story is.

“Because if you know what it is, then you can say, ‘Okay, how can I help you solve your problem so you can solve mine?' A type of selfish altruism. That requires a mind shift, and it's easier said than done. Our biggest enemy is the human brain.

“But it can be done. And if you change the way you look at things, then the things you look at change too.

“So many times we fight about yesterday instead of fighting for tomorrow.

“Like the story of the Irishman who would have said during the conflict in Northern Ireland: ‘Let's get on with the future,' only for someone to counter that with, ‘Fuck the future, let's get on with the past.’

“And that's what we have to watch out for."

♦ VWB ♦

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