KEY ELEMENTS OF MEDIATION
Fast tracking the settlement process
Our court system is and has been in a state of crisis for some time now. Attorneys are having to jump through hoops to reach the steps of court and once there, the allocation of a judge is dependent on availability. Our cluttered court rolls regularly result in postponements at court as the number of matters on the court roll significantly exceeds the number of available judges on any given day.
Internationally, mediation has shown itself to be a quick and successful method of achieving access to justice outside of the court room. It is utilized extensively in inter alia the family and labour law arenas already and the cost saving of averting a trial situation is huge.
Voluntariness
While not always voluntary in its initiation, its continuation and success is founded on a will by both parties to curtail costs and genuinely attempt settlement.
Parties can be compelled by a contractual obligation or in recent times there is even a possibility of court ordered mediation.
An order for mediation was recently handed down in the Gauteng Division of the High Court with an alternative that the defendant provide reasons for its refusal to refer.
The success of the process however depends largely on the will of the parties to embrace the mediation process.
Control
The mediator manages the mediation process. The pivotal element of control derives from the mediator’s decision to engage the parties jointly or separately and to utilize both joint and side meetings in order to achieve meaningful and constructive engagement.
Outcome determined by the parties
The mediator has no control over the outcome of the proceedings. While she controls the process, the parties determine the issues raised for discussion as well as the outcome of the mediation.
Confidentiality
Privacy is central to mediation. The process enables parties to communicate confidentially with the mediator in private meetings. The mediator is not entitled to relay information obtained during these side meetings without the consent of the party providing such information. The process is held in private and conducted in confidence.
Neutrality of the mediator
The mediator is required to be impartial, neutral and independent of the parties. Equal attention is given to each party and specialist skill is utilized to assist the parties in their negotiation. It is to be highlighted that the mediator has no decision making power. Unless she adopts an evaluative mediation style, she does not express views on the merits of the case nor is it her place to suggest outcomes.
Without prejudice
Mediation is conducted on a without prejudice basis. It is utilized as a dispute resolution strategy without the parties’ losing their rights to resort to court for relief.
Flexibility
While there is a structured process in which a mediation operates, the parties decide on the subject content of the mediation, who attends, where and when the mediation shall take place and also on its outcome. The process is structured yet without the formalities of a court trial.
Costs
A mediation is significantly cheaper than a court trial and can be curtailed further by the length of the mediation process.
The length of time spent discussing the dispute is hugely curtailed by the absence of court formalities and procedures.