Mediation

Mediation has been implemented as part of Government’s effort to transform the civil justice and enhance access to justice.

The objective is to assist Case-Flow Management in the reduction of disputes appearing before Court and to promote access to justice. The mediation rules make provision for the referral of disputes for mediation at any stage during civil proceedings, provided that judgment has not been delivered by the Presiding Officer.

Rule 41A of the High Court provides that it is mandatory for all parties to consider medication. Mediation is still voluntary but the parties must at lest consider it. Mediation in the District and Regional Courts is also voluntary butregulated by a set of rules of procedure.

So, what is mediation?

Mediation is a structured, interactive process where an impartial third party assists disputing parties in resolving conflict through the use of specialized communication and negotiation techniques. A mediator is facilitative in that she/he manages the interaction between parties and facilitates open communication.

Mediation is a form of alternative dispute resolution resolving disputes between two or more parties. Typically, a third party, the mediator, assists the parties, themselves, to negotiate a settlement. The term mediation broadly refers to any instance in which a third party helps others reach an agreement.

More specifically, mediation has a structure, timetable, and dynamics that “ordinary” negotiation lacks. The process is private and confidential, possibly enforced by law. Participation is typically voluntary. The mediator acts as a neutral third party and facilitates rather than directs the process.

Benefits of mediation

There are many benefits of mediation which include:

The mediator charges a fee for her/his time, however the mediation process generally takes much less time than litigation in a court of law. While a case in the hands of a lawyer or a court may take months or years to resolve, mediation usually achieves a resolution in a matter of hours. Taking less time means expending less money on hourly fees and costs.

While court hearings are public, mediation remains strictly confidential. No one but the parties to the dispute and the mediator/s know what happened. If a party does not wish the other party to be informed of a particular fact then the mediator will keep that fact confidential. Confidentiality in mediation has such importance that in most cases our South African law cannot force a mediator to testify in court as to the content or progress of mediation. Mediators destroy their notes taken during a mediation once that mediation has finished. There are a few exceptions to such strict confidentiality which is provided by our law.

Mediation increases the control the parties have over the resolution. In a court case, the parties obtain a resolution, but control resides with the magistrate or judge. Often, the presiding officer cannot legally provide solutions that emerge from mediation. Thus, mediation is more likely to produce a result that is mutually agreeable for the parties.

Mediation provides vehicle to preserve the relationships between the parties which relationship may become strained or destroyed by litigation. It also assists potential litigants to determine at an early stage whether proceeding to litigation is in their best interests.

Mediators are trained in working with difficult situations. The mediator acts as a neutral facilitator and guides the parties through the process. The mediator helps the parties think “outside of the box” for possible solutions to the dispute, broadening the range of possible solutions. The mediator will examine with the parties their best alternatives to a negotiated settlement.

DISPUTES THAT CAN BE MEDIATED

Mediation can be used in a variety of disputes such as:

  • Separation
  • Divorce
  • Maintenance
  • Parenting plans (child “custody” and “visitation”)
  • Family businesses
  • Adult sibling conflicts
  • Parent(s)/adult children

 

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If you have any questions or if we can help you with your Memorandum of Incorporation then feel free to contact us.

Disputes that can be mediated

Mediation can be used in a variety of disputes such as:

Family

  • Separation
  • Divorce
  • Maintenance
  • Parenting plans (child “custody” and “visitation”)
  • Family businesses
  • Adult sibling conflicts
  • Parent(s)/adult children

Workplace

  • Wrongful termination
  • Workers’ compensation
  • Discrimination
  • Harassment
  • Grievances
  • Labour management

Commercial

  • Landlord/tenant
  • Homeowners’ associations
  • Builders/contractors/realtors/homeowners
  • Contracts
  • Partnerships

The above is just some examples. Mediation can be used in most disputes.
Trevor Keyes is a qualified mediator and can help you resolve your dispute through mediation.