MEDIATION AS AN ALTERNATIVE DISPUTE RESOLUTION PROCESS

What is mediation?
Parties involved in a dispute can either institute legal action, by which the matter is taken to court for decision by a judge or magistrate, or they can resolve the issue through an alternative dispute resolution technique such as mediation or arbitration. Mediation is a co-operative dispute resolution process whereby an impartial mediator facilitates communication between those parties in dispute in order to find mutually agreed solutions. The parties involved in the conflict will meet at an agreed location where the mediator will guide the process. If the parties agree on solutions, they will enter into a written agreement, which agreement will govern their relationship in future. If no agreement is reached, the parties can choose to either to take the matter to court or to refer the matter for arbitration.

There is no limit to the type of dispute that can be resolved through mediation. Mediation is often used very effectively in divorce proceedings and the agreement reached forms the basis of the settlement agreement that is normally incorporated in an order of divorce. Disputes in the workplace can also be resolved by appointing a mediator to assist with reaching a workable solution to enhance working relationships. Other examples include disputes between family members and disputes regarding the interpretation and implementation of all types of contracts.

How does mediation differ from arbitration?
The parties can agree to refer a dispute for arbitration directly. This is a private judicial hearing and the parties are bound by the decision of the arbitrator. Mediation differs mainly from arbitration in that the dispute is resolved by the reaching of a mutual agreement between the parties. The mediator acts as a facilitator and cannot make any decisions that are binding on the parties. Although mediation is not a binding process, a contract is drawn between the parties which they are obliged to honour.

Why mediate?
Although there are certain types of disputes that are more suitable to be resolved by making use of the normal legal court processes, some types of disputes do not warrant lengthy and expensive legal battles.
Mediation can provide a more effective alternative to dispute resolution for those parties who want to avoid a hostile, lengthy and costly legal battle. Mediation aims to find a win-win outcome, where each party compromise equally on the issues that are important to them. It is empowering in the sense that parties are in control of the decisions that are made. Litigation can be a very aggressive and confrontational process, whereas mediation is normally more co-operative and focuses on problem solving, rather than on assigning blame.

Mediation is normally more affordable than litigation. Depending on the nature of the dispute, solutions can be found and agreements reached within a few sessions of participating in the mediation process. The costs of the mediation will only include the hourly rate at which the mediator charges per session as well as the time spent on the drafting of an agreement after the parties have resolved the issues. Lawsuits can take years, whereas mediation only takes a fraction of the time. Through mediation, the parties learn to have insight and empathy for the other person's viewpoints and are therefore able to reach a mutual understanding. It is therefore focused on preserving relationships for the future.

What is the role of the mediator?
It is important to note that the mediator is a mere facilitator of the process and not a decision maker. The mediator will:
• assist in identifying the important issues in the dispute;
• help the parties to explore alternative solutions so as to resolve the dispute;
• help to eliminate misunderstandings by encouraging the parties to understand each other's needs;
• maintain confidentiality and neutrality;
• encourage constructive and effective communication between the parties in order for each person to voice their opinions, expectations and feelings;
• provide information on the legal and mediation process;
• maintain objectivity and give each person an equal opportunity to state their case.

Mediation services
Petzer, du Toit & Ramulifho Attorneys can be contacted to enquire about the mediation services offered by the firm.

Written by
Una du Toit

PETZER, DU TOIT AND RAMULIFHO