‘Mediation’ broadly refers to any instance in which a third party helps disputants reach agreement. The process is private and confidential and participation is typically voluntary.
The mediator acts as a neutral third party and facilitates rather than directs the process.
Court-referred mediation rules have been introduced for use in magistrates’ courts in South Africa and these are currently being piloted in some magistrates’ courts in Gauteng.
It is hoped that mediation as an alternative to court – less expensive, quicker and more flexible – will be highlighted in the public consciousness.

How it works

Mediation can be scheduled quickly and require a relatively small amount of preparation time. Once both parties have chosen to mediate, they agree on a mediator. Both parties sign an agreement to mediate that includes an agreed date and venue for the mediation, and the mediator usually has some pre-mediation discussions with both parties so that they are aware of what to expect and how the process works. On the day, the mediation usually begins with a round table opening discussion of the case, followed by a series of side-meetings between the mediator and each side until signature of a settlement agreement. Many cases are resolved within a few hours.

A mediator does not focus on legal arguments by both sides or hear evidence (as would a judge or arbitrator) but instead conducts informal joint and separate meetings with the parties to understand the issues, facts and positions of the parties. The mediator facilitates the discussion by reducing hostility, encouraging meaningful dialogue, exploring areas not previously considered, communicatingpositions/proposals in palatable terms, uncovering additional facts, helping each party to better understand the other party’s’ views and evaluations of a particular issue, narrowing the issues, deflating extreme demands, managing expectations, exploring alternatives and preventing regression.

It is advisable to mediate in a neutral venue and we can use our offices, a venue chosen by the parties or we arrange a separate venue. Unless otherwise agreed, the parties share the costs of the mediation.

The benefits of mediation

These can be summarised as follows:

  • Speedy and cost-effective – as it takes much less time than litigation, there is less money spent on hourly fees and costs;
  • Flexibility and simplicity – the process is informal, can be chosen by the parties themselves, does not involve technical, legal issues or court requirements and can be tried at any time;
  • Practical solutions – as a flexible process, solutions emerge that are tailored to the interests of the parties and the mediator can assist in exploring alternatives which might not have considered otherwise;
  • More control – the parties themselves are directly engaged in the negotiation of the settlement. This also means that agreements are more durable and compliance with them high;
  • Confidentiality – while court hearings are public, mediation remains strictly confidential. This allows for relationships and reputations to be protected and maintained.

Mediation can be used in most disputes and is particularly effective where there is a relationship between the parties. It can also be used to define problems or disputes, prevent disputes, manage conflict, negotiate contracts or formulate policy. Any dispute or difference between parties can bring them to mediation. The dispute does not have to be formalised and a dispute may have no legal basis at all (e.g. it may be a way of improving relationships in a workplace).

Costs

We have full-day and half-day rates so that clients are aware of the likely cost upfront; these include the agreement to mediate, pre-mediation advice to the parties by the mediator and drafting the settlement agreement. We usually advise clients to put a day aside for mediation so that time does not become an issue. Unless otherwise agreed, the parties share the costs of mediation. Clients pay for the venue cost upfront and directly to the venue manager.

Please contact us for a quote; we are happy to meet with parties contemplating mediation in order to explain the benefits, procedures and protocols, and to explore the possibility of mediation as a means of settlement of disputes.

Versus arbitration

Arbitration is seen as an alternative to litigation and was originally touted as a speedier and more cost-effective means of getting a legal decision on a dispute. As for a court process, the parties use their lawyers to make arguments to the arbitrator who has to come to a decision and the process generally follows the same rules as for court (so is a relatively formal). As a consequence, arbitration often takes months to actually occur and can be even more expensive than court (the arbitrator, usually a retired judge or senior advocate, is paid for by the parties themselves whereas a magistrate/judge is paid by the state).