Mediation is a voluntary process where a neutral third party, the mediator, helps disputing parties communicate, understand each other’s perspectives, and explore options for resolving their dispute. The mediator does not make decisions, but merely facilitates discussion to help parties reach their own solution and settlement.
Benefits of Mediation:
- Cost-effective: Generally, less expensive than litigation.
- Speedy resolution: Disputes can often be resolved much faster than through court proceedings.
- Win-win outcomes: Aims for mutually acceptable, sustainable solutions, preserving relationships.
- Flexibility: The process is adaptable and avoids strict legal formalities.
- Voluntary: Parties willingly participate and control the outcome.
- Confidential: Discussions and information shared are typically confidential.
- Empowering: Parties have more control over the resolution than in court.
- Reduces stress: Less adversarial than litigation.
Where a dispute exists, parties can agree to mediation before commencing legal proceedings or even during legal proceedings. In some cases, courts may encourage or even require mediation. Once the parties agree to mediation, they will sign an agreement to participate in mediation, outlining the scope and terms.
Mediation can be integrated into the court system and may be encouraged or even required before trial (“court-annexed mediation”) or may be initiated and managed independently by the parties.
Parties can select a mediator themselves, or request the court or a mediation organisation to assist to choose the mediator best suited for the dispute since some mediators may specialise in certain types of disputes.
It is not a strict requirement for mediators to be formally accredited, in general, parties can choose anyone they trust to facilitate discussions and to help them find a solution, however, accreditation is mandatory where parties enter into court-annexed mediation. Accreditation is also recommended and may be preferred as these mediators have undergone specific training and have to adhere to certain ethical standards. Accreditation also enhances credibility.
During the mediation session each party will present their perspective. The mediator then facilitates discussion, helps to identify key issues and potential solutions. The mediator may even have private sessions with each party.
If the parties reach an agreement a settlement agreement will be drafted, which is legally binding. The parties may then choose to have the agreement made an order of court.
The mediation process will end when the reach a settlement or if they are unable to find a resolution. Parties can still pursue litigation if mediation is unsuccessful.
There’s a growing emphasis on mediation in South Africa as it is a valuable dispute resolution method which offers numerous benefits over traditional litigation.
A Mediation Bill to further regulate and promote mediation is in the works. This bill aims to minimise delay in justice delivery, promote mediation as an appropriate dispute resolution method, establish a legal framework for mediation and to address various aspects of the mediation process, including confidentiality, mediator accreditation and enforcement of agreements.
When considering whether mediation should be attempted, mediation fees should also be taken into account. Fees are not fixed and may vary depending on various factors such as the experience and qualifications of the mediator, the complexity of the matter, the type of dispute, administrative costs such as travel or venue hire, accreditation of mediators, etc. Before starting the mediation process, it is important to have a written fee agreement with the mediator which outlines the fees, payment terms and any additional costs. The parties involved in mediation should also have some agreement as to how the mediator’s fee will be shared between them.
All things considered, mediation is often a more cost effective alternative to litigation as parties can save significant amounts on legal fees and costs.