Mediation – A Viable Option for Dispute Resolution?

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Internationally mediation burst into consciousness in the mid-1970s and has since that time been a chosen process for resolving disputes

Mediation may be understood as “a settlement of a dispute or controversy by setting up an independent person between two contending parties in order to aid them in the settlement of their disagreement”, or “a process in which two or more people involved in a dispute come together to try to work out a solution to their problem with the help of a neutral third person

Below, we briefly touch on the factors surrounding mediation, the advantages and disadvantages of utilizing mediation as a mode of conflict resolution and how it may aid in the relief of the backlog of cases in our judiciary.

New developments: Court Annexed Mediation

As per the notice given in the government gazette circa ’14 regarding the Court Annexed Mediation Rules, the purpose of mediation is presented as follows, to:

  • Promote access to justice;
  • Promote restorative justice;
  • Preserve relationships between litigants or potential litigants which may become strained or destroyed by the adversarial nature of litigation;
  • Facilitate an expeditious and effective resolution of a dispute between litigants or potential litigants;
  • Assist litigants or potential litigants to determine at an early stage of the litigation or prior to commencement of litigation whether proceeding with a trial or an opposed application is in their best interests or not; and
  • Provide litigants or potential litigants with solutions to the dispute, which are beyond the scope and powers of judicial officer

The above mentioned rules, give enforcement to Section 34 of the #Constitution, which reads as follows: everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or where appropriate another independent and impartial tribunal or forum

Mediation forms part of the principles grouped under ADR, once referred to as alternative dispute resolution and now referred to by some as appropriate dispute resolution. It is essentially aimed at the resolve or settlement of conflict and disputes between parties. It is a particularly favourable mode of resolution, when parties in the dispute still want to maintain the working relationship, opted to by many franchises and other agreements in like.

The advantages of mediation

  • It offers speedy resolution of disputes;
  • It is considerably cheaper than litigation;
  • It provides a win-win situation for both parties in a dispute;
  • The process is flexible and avoids technicalities;
  • It is a voluntary process;
  • It promotes reconciliation; and
  • Parties can use their own languages

The disadvantages of mediation

  • Success in mediation depends on each party’s “good faith” commitment to the process which is sometimes lacking.
  • Mediation is focused on the future, so past conduct may be overlooked or minimized

Mediation, perhaps not as big in the South African context as it is compared to other jurisdictions, is still an available mode for the resolution of disputes and conflict.

*Further reading

Why mediation is not taking root in South Africa – Africa Centre for Dispute Settlement
Mediation Rules – the doj & cd

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