Mediation is a form of dispute resolution that is actively encouraged by the courts as a way of settling disputes rather than going through formal court proceedings. Mediation is also often preferred by clients because it is a more efficient form of dispute resolution compared to litigation, and it is private.
When it come to commercial, divorce, maintenance, child custody and other forms of family disputes, South Africans rely heavily on the litigation process. Relying on a third party to settle the dispute.
Mediation is a preferred dispute settlement methodology in many countries, and is fast becoming South Africa’s preferred dispute resolution process. , Settlements reached are typically practical and a private agreement between the parties. Opposed to litigation which a public courtroom battle that is a costly and lengthy process, combative, seeking a “win-lose” outcome, decided by a Magistrate or Judge, which typically destroys the relationship between the parties.
There are four types of mediation, namely:
- settlement where a mediator aims to lead the process where a compromise is reached to suit both parties,
- facilitative mediation where the mediator highlight areas that parties may be willing to compromise,
- therapeutic mediation which deals with underlying causes of a dispute, and
- evaluative mediation where a mediator provides parties with a realistic assessment of their negotiation position
The therapeutic and settlement models work best in South Africa because in both these models the concept is not only to compromise and settle, but ultimately to maintain and restore the relationship between the parties.
In the mediation process, a mediators role is not to represent “their clients” but to guide them to reaching a mutually agreed outcome. Mediating in good faith by parties is also encouraged by the mediators, for the mediation to be successful.
In a workplace environment, companies should build a clause into every contract, providing for, and in the event of a dispute, the first port of call must be the Mediation.
Mediation should be a quick, inexpensive and effective means to resolving disputes in a mutually beneficial manner.