The development of mediation as an alternative dispute resolution (hereinafter “ADR”) method has become increasingly common and an integral part of the practice of law in respect of resolving disputes.
Mediation can be defined as a process whereby the parties to a dispute make use of an impartial third party (a mediator) to assist them in resolving their dispute.[1] Furthermore, mediation can be a voluntary or statutory process. However, within the South African legal framework, mandatory mediation has become more prevalent. In supporting this, is the recent establishment of the Uniform Court Rule 41A, which imposes mediation as a compulsory first step before pursuing litigation and applies to all High Courts of South Africa.
There are different types of mediation namely, facilitative mediation, settlement mediation, evaluative mediation and transformative mediation. Considering the different types of mediation, they are not mutually exclusive and a mediator may utilise more than one type of mediation, depending on the circumstances and needs of the parties when attempting to resolve a dispute. In respect of facilitative mediation, the mediator structures the process to assist the parties in reaching a mutually agreeable solution. The mediator does not make recommendations or provide advice to the parties unless requested. The focus is on the needs and interests of the parties who are, therefore, in charge of the outcome.[2]
Settlement mediation, on the other hand, focuses on the position of the parties. The mediator during this type of mediation encourages the parties to use incremental bargaining towards a compromise and persuades the parties to compromise their position towards a settlement.[3] Moreover, evaluative mediation is a process modelled on settlement conferences held by judges. During this process, the mediator assists the parties by pointing out the weaknesses in their cases and may make formal or informal recommendations to the parties. Considering this type of mediation, the concerns are in terms of the legal rights or industry standards and norms, instead of the needs and interests of the parties.[4] Lastly, transformative mediation attempts to reconcile the underlying causes of conflict between the parties and repair their relationship. This form of mediation focuses on the behaviours, emotions and relations of the parties.[5]
The nature of the mediation process allows not only for the matter to be resolved in less time and with fewer costs, but further, preserves and promotes harmonious relationships between parties as it allows for parties to find a workable and realistic solution. Mediation also provides parties with the comfort of disclosing information to the mediator and to each other without the risk of it becoming public information and thus, instils confidentiality between the parties. Moreover, mediation proceedings are flexible with the mediator deciding on the process to be followed as the process is also an informal one. Furthermore, mediation allows the parties to control both the process and outcome. Parties can decide whether or not they wish to proceed with the mediation at any time and can also decide whether or not they want to settle a dispute and on what terms. Therefore, mediation proves to be advantageous in respect of acting as ADR mechanism.
[1] Wiese T Alternative Dispute Resolution in South Africa: Negotiation, Mediation, Arbitration and Ombudsmen (2016) 47.
[2] Wiese T Alternative Dispute Resolution in South Africa: Negotiation, Mediation, Arbitration and Ombudsmen (2016) 48.
[3] Wiese T Alternative Dispute Resolution in South Africa: Negotiation, Mediation, Arbitration and Ombudsmen (2016) 49.
[4] Wiese T Alternative Dispute Resolution in South Africa: Negotiation, Mediation, Arbitration and Ombudsmen (2016) 49.
[5] Wiese T Alternative Dispute Resolution in South Africa: Negotiation, Mediation, Arbitration and Ombudsmen (2016) 49.
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