“PSSSSSST… HAVE YOU CONSIDERED MEDIATION”?

Mediation is a process in which parties to a dispute endeavour to reach a settlement though negotiations^[1] facilitated by an independent third party (the ‘mediator’).^[2] 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 final mutually acceptable agreement.^[3] Therefore, there exists no winning or losing party in this process.^[4] In other words, either the parties agree on an outcome of mutual benefit, or there is no result.^[5] If mediation does not succeed, disputants may resort to formal litigation proceedings in the ordinary course of civil dispute resolution.[6]

The mediator’s role is aimed at facilitating a settlement between the disputing parties.[7] 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.[8] The characteristics of the mediation process include that sessions are conducted in private (and without prejudice).^[9] This is central to the process of mediation.[10] Furthermore, the process is speedy, flexible, informal, and cost-saving.^[11] Mediation is also said to be characterised by its reconciliatory nature particularly in instances where personal or business relationships have broken down.^[12] Mediation also bridges poor communication or mistrust between disputants^[13] and thus re-orientates parties towards each other.^{^[14]}

The Benefits of Mediation:

One of the most fundamental benefits for disputants 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,[15] as opposed to a matter of years, through the litigation and Court processes.[16] 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 and concluding settlement agreement has the benefit of being made a formal Order of Court, being binding on both parties. However, should the mediation process be unsuccessful, parties still have the benefit of having their matter resolved through the conventional litigation process. A further benefit to a failed mediation session is that it would assist in narrowing the contested issues in dispute, thereby saving time and money during later Court proceedings.^[17]

Moreover, the disputing parties are able to represent themselves during the mediation process, as the process is simple enough to understand as all formal and rigid litigation procedures and rules of evidence are dispensed with. Disputants would accordingly be in a position to have their message conveyed personally and accurately to the opposing party, in a controlled environment,[18] which may even encourage proper communication and possible reconciliation between disputants. This is opposed to traditional adversarial litigation processes where the attorneys handle negotiations during the litigation process, which seldom offer opportunities for the parties to speak to one another.[19] Disputants are therefore able to play a more active role in the course of the resolution of their disputes.[20] They therefore no longer feel excluded from the resolution process due to the complex nature of litigation proceedings and being reliant on their legal practitioners to resolve their disputes on their behalf.

Disputing parties have control over the choice of the mediator as well as over the duration, timing, cost and outcome of the dispute.[21] Therefore, for a disputant with a legal representative who may wish to draw out a matter beyond his or her client’s means or needs, mediation can ensure that such client has the final say on whether and when settlement should be negotiated and on what terms.[22] This would therefore curb superfluous or exorbitant legal costs pertaining to the resolution of the disputant’s matter.[23] Mediation processes are also private and confidential in nature. Any information shared during these proceedings cannot be disclosed outside of the mediation session. Therefore, these sessions are not harmful to any of the disputants’ lives or business reputations outside of the mediation process. Any of disclosures made during the mediation process are without prejudice and will not be admissible as future evidence in any Court.[24] Therefore, the mediation process will not be harmful to any disputant’s prospects later at the trial or hearing proceedings.[25] The benefit of confidentiality during the mediation process also provides a safe environment within which parties can be encouraged to make full and frank disclosures.[26] 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 litigation.[27]

There are additional benefits to the safety of the mediation environment, as discussed above. Due to the structured, yet informal and flexible, approach of mediation,[28] a more comfortable and non-adversarial environment may be created for disputants.[29]In this type of environment disputants are able to freely and creatively discuss resolution options[30] beyond the scope and function of the judicial officers.[31] Therefore, ‘with the assistance of a mediator, parties are encouraged to create options and search for new solutions, beyond what a Court or arbitrator might be capable of providing. The parties are also not constrained to the scope of existing pleadings or the remedies that a Court can provide. They may seek to resolve a range of different issues, whether or not the subject of current litigation, or even to resolve in a single process disputes that span separate Court proceedings in one or more jurisdictions.’[32]

This will therefore better satisfy the needs as well as interests of the disputants involved, as opposed to the Orders at the conclusion of Court proceedings which are outside of the disputants’ control.[33]

Research suggests that mediated settlements have a higher rate of voluntary compliance than Court Orders.[34] The reason for this is that the settlement will often conclusively deal with the underlying issues[35] and not merely the positions adopted by the parties.[36] Furthermore, the problem-solving nature of the mediation process leaves parties with a sense that they have arrived at a fair outcome through a process that is conducive to the building, rather the destruction of relationships.[37]

In conclusion, 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.

Therefore, before jumping into litigation on the advice of your attorney, make enquiries on the possibility of resolving your matter via mediation. You have nothing to lose.

References:

[1] Brand J, Steadman F & Todd C Commercial Mediation: A User’s Guide to Court-referred and Voluntary Mediation in South Africa (2012) 20.
[2]Also known as the ‘neutral’. Ramsden P The Law of Arbitration: South African and International Arbitration (2009) 2.
[3] Brand J, Steadman F & Todd C Commercial Mediation: A User’s Guide to Court-referred and Voluntary Mediation in South Africa (2012) 20.
[4]Ramsden P The Law of Arbitration: South African and International Arbitration (2009) 3.
[5]Ramsden P The Law of Arbitration: South African and International Arbitration (2009) 3.
[6] Which is the default position in the arena of civil dispute resolution.
[7] Alexander N International and Comparative Mediation: Legal Perspectives (2009) 30.
[8] Brand J, Steadman F & Todd C Commercial Mediation: A User’s Guide to Court-referred and Voluntary Mediation in South Africa (2012) 20; Ramsden P The Law of Arbitration: South African and International Arbitration (2009) 2.
[9]Schneider C ‘Mediation in the Children’s Act 38 of 2005’ available at http://www.famac.co.za/mediation/in-the-childrens-…(accessed 21 November 2013).
[10] Spencer D and Brogan M Mediation Law and Practice 2007 85-87; Boulle L and Nesic M 2001 Mediation: Principles Process Practice 41-42.
[11] Brand J, Steadman F & Todd C Commercial Mediation: A User’s Guide to Court-referred and Voluntary Mediation in South Africa (2012) 27.
[12] Alexander N International and Comparative Mediation: Legal Perspectives (2009) 12.
[13] Brand J, Steadman F & Todd C Commercial Mediation: A User’s Guide to Court-referred and Voluntary Mediation in South Africa (2012) 29.
[14]Schneider C ‘Mediation in the Children’s Act 38 of 2005’ available at http://www.famac.co.za/mediation/in-the-childrens-…(accessed 21 November 2013).
[15]Joubert J ‘Court-annexed mediation opens doors to exciting opportunities’ Legalbrief Today 23 September 2014.
[16] (Of course, depending on the nature of your matter. Most of the time is often wasted on waiting for a trial date at Court). Joubert J ‘Court-annexed mediation opens doors to exciting opportunities’ Legalbrief Today 23 September 2014
[17]Joubert J & Jacobs Y ‘The debate- a case for mandatory mediation in South Africa’ Legalbrief Today 6 October 2009; Joubert J ‘Mandatory mediation will soon arrive in South Africa, and should be warmly welcomed by the legal profession’ Legalbrief Today 9 November 2011.
[18]Jordaan B ‘Court based mediation becoming a reality in SA civil justice system’ (2012) 517 De Rebus 19.
[19]Joubert J ‘Court-annexed mediation opens doors to exciting opportunities’ Legalbrief Today 23 September 2014.
[20] Parties are provided with an ‘opportunity to play a greater role in the management of their disputes by actively participating in the dispute resolution process. Mediation provides a forum for self-determination by encouraging parties to, identify their needs and interests; generate options to satisfy each party’s needs and to maximise fulfilment of interests; and to create their own outcomes.’ Alexander N ‘Global trends in mediation: Riding the third wave’ in Alexander N (ed) Global Trends in Mediation 2 ed (2006) 10.
[21]Jordaan B ‘Court based mediation becoming a reality in SA civil justice system’ (2012) 517 De Rebus 19.
[22]Jordaan B ‘Court based mediation becoming a reality in SA civil justice system’ (2012) 517 De Rebus 19.
[23]Jordaan B ‘Court based mediation becoming a reality in SA civil justice system’ (2012) 517 De Rebus 19. This is opposed to civil litigation where the duration, timing, cost and outcome are out of the disputants’ control and are unpredictable.
[24] Nor be binding on the parties outside of the mediation process, unless reduced to a written and signed settlement agreement. (Rule 8 (e) of the Draft Mandatory Mediation Rules of the High Courts and the Magistrates’ Courts of 2011).
[25]Joubert J & Jacobs Y ‘The debate- a case for mandatory mediation in South Africa’ Legalbrief Today 6 October 2009; Joubert J ‘Mandatory mediation will soon arrive in South Africa, and should be warmly welcomed by the legal profession’ Legalbrief Today 9 November 2011.
[26] Brand J, Steadman F & Todd C Commercial Mediation: A User’s Guide to Court-referred and Voluntary Mediation in South Africa (2012) 30.
[27] Brand J, Steadman F & Todd C Commercial Mediation: A User’s Guide to Court-referred and Voluntary Mediation in South Africa (2012) 30.
[28] Department of Justice and Constitutional Development Court Annexed Mediation (Palm Ridge Magistrates’ Court, Seat of the New Ekurhuleni Magisterial District in the Gauteng Province) (2014) 2.
[29] ‘The informality of the process should make a mediation process more “user-friendly” and less stressful than formal litigation processes.’ Brand J, Steadman F & Todd C Commercial Mediation: A User’s Guide to Court-referred and Voluntary Mediation in South Africa (2012) 24.
[30]Sedutla M ‘Launch of Court-Based Mediation Pilot Project’ (2012) 516 De Rebus 8.
[31] Mediation further allows disputants to find solutions that are generally not available in litigation. Joubert J & Jacobs Y ‘The debate- a case for mandatory mediation in South Africa’ Legalbrief Today 6 October 2009; The mediator ‘helps them explore their own and the other party’s underlying concerns and interests…’ Joubert J ‘Court-annexed mediation opens doors to exciting opportunities’ Legalbrief Today 23 September 2014; Brand J, Steadman F & Todd C Commercial Mediation: A User’s Guide to Court-referred and Voluntary Mediation in South Africa (2012) 29.
[32] Brand J, Steadman F & Todd C Commercial Mediation: A User’s Guide to Court-referred and Voluntary Mediation in South Africa (2012) 29.
[33]Sedutla M ‘Launch of Court-Based Mediation Pilot Project’ (2012) 516 De Rebus 8; Joubert J ‘Court-annexed mediation opens doors to exciting opportunities’ Legalbrief Today 23 September 2014.
[34]Jordaan B ‘Court based mediation becoming a reality in SA civil justice system’ (2012) 517 De Rebus 20; ‘Some of the most important benefits of mediation… which broadly relate to the efficiency of mediation as a dispute resolution process, are the following:… high levels of compliance with the terms of a settlement agreement [and the]… satisfaction of the parties.’ Brand J, Steadman F & Todd C Commercial Mediation: A User’s Guide to Court-referred and Voluntary Mediation in South Africa (2012) 27.
[35] The mediator ‘helps them explore their own and the other party’s underlying concerns and interests, without commenting on the merits of the concerns.’ Joubert J ‘Court-annexed mediation opens doors to exciting opportunities’ Legalbrief Today 23 September 2014.
[36]Jordaan B ‘Court based mediation becoming a reality in SA civil justice system’ (2012) 517 De Rebus 20;‘During private sessions with the parties, a skilled mediator finds out more about the nature and origin of the dispute and explores different potential outcomes of the dispute.’ Joubert J & Jacobs Y ‘The debate- a case for mandatory mediation in South Africa’ Legalbrief Today 6 October 2009.
[37]Jordaan B ‘Court based mediation becoming a reality in SA civil justice system’ (2012) 517 De Rebus 20;Joubert J & Jacobs Y ‘The debate- a case for mandatory mediation in South Africa’ Legalbrief Today 6 October 2009.

Prepared by:
Ashley Adriaans | Director | Dispute Resolution: Litigation & Arbitration
Whitney Maclons |Associate | Dispute Resolution: Litigation & ArbitrationThis 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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“PSSSSSST… HAVE YOU CONSIDERED MEDIATION”?

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