As briefly canvassed by the writer in a former article, awareness appears to be the biggest hindrance to the wide-spread use of mediation in the civil and commercial law sectors, with litigation still being the primary method of dispute resolution in South Africa.
It appears that lay-persons are uncertain as to the alternatives available to them when approaching civil disputes and should their matters be referred to their attorneys, more than likely, litigation would be recommended due to the common practice of our civil justice system.
Most associate mediation with Labour Law and Family Law disputes due to common knowledge legislation pertaining to these areas of practice. However, very few are aware that mediation finds application in a wide spectrum of other areas of civil law, which prescribe/recommend mediation in terms legislation. Interestingly, these areas of law include:
[Statues referred to in Commercial Mediation A User’s Guide 2nd Edition, J.Brand, F.Steadman, D Todd].
On a non-legislative front, mediation finds helpful application to common disputes pertaining to breach of contract, debt collection, delictual claims, construction and building disputes, and, with gaining popularity, medical negligence disputes.
It is remains evident, however, that due to a lack of awareness of mediation, particularly mediation as provided for statutorily, and due to the common practice of our civil justice system, the practice of mediation remains unfamiliar to many, which directly hinders it’s useful and widespread use.
As the well-known adage dictates, “Rome was not built in a day”, it may be helpful to recommend that over time, aggrieved lay-persons, before resorting to litigation to resolve their disputes, that they seek legal counsel from law firms where mediation is offered as a service alternatively that they approach private mediation institutions, in order to ascertain whether mediation may find application (statutorily or not) to their matters and thereby spreading the awareness of mediation and promoting its vastly effective use in our civil justice system.
Whitney Maclons | Associate | Dispute Resolution
This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)