May 24, 2017
May 24, 2017
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Mediation is a process in which parties to a dispute endeavour to reach a settlement though negotiations, facilitated by an independent third party known as the ‘mediator’, as opposed to embarking on litigation proceedings. Through these facilitated negotiations, the mediator assists the parties in identifying the issues in dispute and assists them in developing resolution options in reaching a mutually acceptable agreement. If mediation does not succeed, the parties’ rights to resort to formal litigation proceedings remain intact.

The Mediator’s role is aimed at facilitating a settlement between the disputing parties. Therefore, he or she cannot make any decisions of fact or law, neither can he or she reach a final decision nor determine the credibility of any party participating in the mediation process (Brand J, Steadman F & Todd C Commercial Mediation: A User’s Guide to Court-referred and Voluntary Mediation in South Africa (2012) 20). The mediation process is conducted in private, (on a without prejudice and confidential basis) and is designed to be speedy, flexible, informal and cost-saving. Mediation is also said to be characterised by its reconciliatory nature, particularly in instances where personal or business relationships have broken down.

One of the most fundamental benefits for parties using the mediation process, is the expedient nature and cost effectiveness of the process. Mediation further has the potential of having a dispute resolved in a matter of days, as opposed to years, which is usually the case when disputes proceed through the litigation/Court processes. Mediation is also more cost effective as the parties involved would pay a set mediation fee and split the costs of the process, thereby avoiding huge and unpredictable litigation costs/legal fees.

A successful mediation process, resulting in the conclusion of a mutually beneficial settlement agreement, has the benefit of being made a formal Order of Court, which would be binding on both parties and enforceable in Court. Should the mediation process be unsuccessful, parties will still have the benefit of having their matter resolved through the conventional litigation process. Even time spent in a failed mediation process could significantly reduce subsequent litigation costs, as the mediation process could assist the parties in narrowing the issues in litigation.

Parties are also able to represent themselves during the mediation process as the process is simple enough to understand, where most of the formal and rigid litigation procedures and rules of evidence are capable of being dispensed with. Mediation allows each of the parties to have their communication conveyed personally and accurately to the opposing party/s in a controlled and protected environment (Jordaan B ‘Court based mediation becoming a reality in SA civil justice system’ (2012) 517 De Rebus 19) which may encourage effective communication and possible reconciliation between disputing parties. This is often not the case in traditional adversarial litigation processes where the attorneys handle negotiations during the litigation process. Parties to mediation are, therefore, able to play a more active role in the course of the resolution of their disputes with the added benefit of being guided by the mediator through the process.

Disputing parties have mutual control over the choice of the mediator as well as over the duration and cost of the process. They are also at liberty of appointing attorneys as their advisors, to protect their legal and commercial interests, without the attorneys actually attending the mediation proceedings (unless of course the parties wish to be represented and allow legal representation).

Due to the private and confidential (and without prejudice) nature of mediation, any information shared during these proceedings cannot be disclosed outside of the mediation session. Any without prejudice disclosures made during the mediation process will not be admissible as future evidence in any Court. The benefit of confidentiality during the mediation process provides a safe environment within which parties can be encouraged to make full and frank disclosures (Brand J, Steadman F & Todd C Commercial Mediation: A User’s Guide to Court-referred and Voluntary Mediation in South Africa (2012) 30). This provides significant opportunities for exploring and creating solutions to the dispute that might not be identified and that could not be imposed or provided for by a Court through civil or commercial litigation. Due to the structured, yet informal and flexible, nature of mediation, a more comfortable and non-adversarial environment may be created for disputing parties.

Research indicates that mediated settlements have a higher rate of voluntary compliance than Court Orders (Jordaan B ‘Court based mediation becoming a reality in SA civil justice system’ (2012) 517 De Rebus 20). The reason for this is that the settlement will often conclusively deal with the underlying issues and not merely the positions adopted by the parties. All settlement agreements should be made in full and final settlement of the dispute at hand in order to avoid either of the parties having an opportunity of reopening the matter at a later stage.

Depending on the nature of your dispute, mediation may assist you in resolving your matter with greater personal satisfaction, speedily and in a more cost effective manner as opposed to dragging your dispute through the rigmarole of litigation, by virtue of it simply being the default position in the arena of civil dispute resolution.

We recommend that, before embarking upon costly and time consuming litigation, you seriously consider the possibility of resolving your matter through mediation. There is not much to lose and, quite frankly, a lot to benefit from!

Prepared by:

Whitney Maclons
Associate – Adriaans Attorneys | LLB | LLM [Mercantile Law – Alternative 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)

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