When you experience a family issue, or issues, or a business relationship goes sour, or a big dog bites your best friend in the park, you do not have to call your lawyer immediately, at least not to write a threatening letter.
Although mediation has been around for a long time, it still is used as an exception to the rule. We have 3 mediators in the firm, MC, Odwa and Chris but since lockdown in March last year, we have done 2 virtual (Zoom Mediations) and a handful of face-to-face mediations.
However, we often have round table discussions on a without prejudice basis, very informal, very open and almost always very productive. In some instances, it feels like mediation in disguise as the principles of mediation can be applied in an informal way and issues are identified, peripheral aspects investigated, and ways sought to find a solution or solutions to deal with the issues and move forward with a mutually acceptable and beneficial agreement.
Although Mediation is relatively informal, compared to a court process, it is still structured in a way that many people shy away from it. There is no need to be wary of it. If you can have coffee with your neighbour to discuss his barking dog, you can meet with your neighbour and the local pastor, or with the chairman of the local street committee, or the ward councillor. Similarly, you can just as easily sit down with a mediator to find a solution to whatever problems exist between you and your spouse or life partner, child, neighbour, business partner, school principal, work manager, boss, or any other person or institution.
Mediation – Summary:
Mediation is not a foreign term in South African law. Mediation has been taking place in various types of disputes, albeit at a slow pace. But recently mediation has taken on a more important role in the legal profession, and as more people see the benefits of mediation, litigation will become the last resolution.
If you need to know more, read this:
Wikipedia’s definition of mediation is “a structured, interactive process where an impartial third-party assists disputing parties in resolving conflict through the use of specialised communication and negotiation techniques”. Mediation, when utilised in law, is a form of alternative dispute resolution. Parties that are involved in a dispute may choose the mediation process to resolve the issues between them, either before commencing with legal action or just after legal action has been instituted but before Judgment has been handed down. It is a voluntary process that must be agreed upon by both parties.
The objection of mediation is to obtain a resolution that is mutually agreeable to both parties. The appointed mediator must remain impartial throughout the mediation process and cannot impose a decision on the parties. They cannot judge or arbitrate, but rather assist the parties by advising them, which may, ultimately, result in the parties achieving a settlement agreement. It does happen that mediation does not resolve the dispute, but as a consequence of the discussions, the parties can identify and limit the key issues in dispute, discuss options to resolve the disputes and investigate areas of compromise.
On the 9th of March 2020, South African courts entered in the new era of the civil justice system. An amendment to the Uniform Rules of the High Court, Rule 41A, was introduced, requiring parties to consider mediation before litigation in the High Court. The Court may also recommend mediation to the parties if it deems it appropriate in a specific case. The High Court is, at times, intolerant of legal practitioners, who ignore the potential benefits of using alternative dispute resolution to resolve, define, limit, or dispose of disputes that are pending before the courts. It is now mandatory that Form 27 is to be attached to new matters being instituted in the High Court.
On the 1st of December 2014, the Rules of Voluntary Court-Annexed Mediation (Chapter 2 of the Magistrates’ Courts Rules) were approved by the Minister and came into operation. The objective of this chapter is to give effect to Section 34 of the Constitution of the Republic of South Africa 1996: “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”.
The question is, why would parties mediate to achieve a settlement rather than have a court determine a winner and loser? The following are just a few reasons.
In recent months, during the world-wide pandemic, mediation has come to the fore in the courts in order to reduce the litigation case load that the court is burdened with.
Successful mediation lays the foundation for collaborative, non-confrontational problem solving, which preserves important relationships.
Call us for a free discussion on problem-solving.
MC Coetzer, Odwa Ndesi and Chris Fick – 021-424 3937 / email@example.com
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