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Mediation has become a mandatory consideration for dispute resolution in South Africa, and rightfully so.

 

2022/06

Veerash Srikison – Director of Fair Practice

 

Mediation is an informal conflict-resolution process facilitated by a neutral third person, the mediator. Mediation gives people the opportunity to discuss their issues, clear up misunderstandings, and find areas of agreement in a way that would never be possible in a courtroom. As a society, though, we are still having a hard time with the notion that two adults could dissolve their relationship in the same way they began it: by working together with mutual respect and understanding.

 

Our case law for endorsing the use of mediation is increasing, and many judicial officers are seeing the benefits of mediation as a way to alleviate the court backlog in addition to giving disputants access to a forum or tribunal that will resolve matters quickly. Further mediation gives disputants the opportunity to separate the issues that can be resolved, and anything left unresolved can then be taken to another forum for adjudication. Case law in South Africa also shows that there will be costs orders granted against lawyers who do not suggest mediation, or use mediation effectively to assist clients in reaching resolution sooner.

 

In 2010, the High Court in the case of MB v NB (also referred to as the “Brownlee judgement”) recognised the characteristics and tenets of mediation with Acting Judge Brassey stating:

 

“Mediation can produce remarkable results in the most unpropitious of circumstances, especially when conducted by one of the several hundred people in this country who have been trained in the process. The success of the process lies in its very nature. Unlike settlement negotiations between legal advisers, in themselves frequently fruitful, the process is conducted by an independent expert who can, under conditions of the strictest confidentiality, isolate underlying interests, use the information to identify common ground and, by drawing on his or her own legal and other knowledge, sensitively encourage an evaluation of the prospects of success in litigation and an appreciation of the costs and practical consequences of continued litigation, particularly if the case is a loser.”

 

The court went even further and expressed its displeasure with attorneys who failed to advise their clients in family matters to mediate before venturing to court. In addition, the Acting Judge limited the costs that such attorneys could recover from their clients to costs they could tax on the party and party scale, and thus deprived them of their full attorney and client fees. The court was of the view that mediation should at least be attempted prior to the commencement of court proceedings, and that legal practitioners have a duty to inform their clients of this conciliatory process.

 

Further benefits include:

 

  1. Saving on costs and time - In mediation, the disputants gain the benefit of one professional that’s serves two. The disputants are both in the company of a single professional who can provide information, which is pertinent to the disputants’ particular circumstances, to them simultaneously, instead of the disputants each having to pay a separate professional for advice. The costs involved in mediation are discussed with both disputants upfront. By working towards a goal in the disputants’ mediation sessions, disputants considerably shorten the time spent on sending papers back and forth, and waiting for responses. Mediation typically progresses at the pace at which the disputants work, and allows a more reasonable timetable for resolving a dispute at the convenience of both disputants and the mediator.

 

  1. Communication and decision-making - Communication between the two disputants is direct since the disputants attend the mediation sessions together. Disputants are encouraged to behave in a collaborative manner so that progress is made quicker. When the disputants are given a chance to speak to each other directly and express their suspected cause for the breakdown of communication and an amicable relationship, it is more likely that they will be able to address their concerns, interests, needs and fears. This paves the way for a deeper understanding of how to reach a “zone of possible agreement”.

 

  1. Choosing the right person to mediate the dispute - A well-trained mediator is always good at helping the disputants communicate with each other in a less destructive manner, and is not fully focused on the legal technicalities, but rather the practical realities that the disputants are both facing. The decisions the disputants make are in the disputants’ control and, therefore, more predictable, and easier to comply with, because they are tailored to suit the disputants’ specific circumstances.

 

  1. Bringing in the disputants’ negotiation style and strategy - During mediation, the disputants will both discuss the areas of their dispute, and create an agenda of issues that the disputants need to reach resolution on. The mediator will facilitate the negotiation so that the disputants can negotiate an outcome that is beneficial to their needs. Should a relationship exist within and beyond the dispute, mediation protects the relationship and moves it away from animosity thus bringing out the collaborative nature of the process during the negotiation.

 

More recently in March 2020, the High Court Procedural Rules (Rule 41A) included a mandatory consideration for mediation prior to the commencement of legal proceedings. The intention is to alleviate the court backlog as it stands. This, in turn, puts autonomy over decision-making, costs and time spent resolving a dispute in the hands of the client in addition to the possibility of reaching resolution without even seeing the doors of the court. This has resulted in a slight increase in mediation in all civil / commercial matters.

 

In the end, mediation assists the client – which shows that the legal profession can indeed put the client first. All these options place legal practitioners in a good light as it shows that their practice is client centred and not based on exploiting the emotions and resources of their client, which, in turn, makes a legal practitioner who is an ally to mediation a more popular choice to attract more clientele. The MB v NB Case has also become a cornerstone to warn legal practitioners of the consequences of not using mediation effectively.

 

South Africa embracing mediation as a process that creates space for the perspectives and voices of women and children, which would not have been heard traditionally, and that empowers people to take back control over decisions that affect their own lives, is a step in the right direction towards making access to justice a reality for all.

 

Veerash Srikison is the Director of Fair Practice and also the facilitator of the Labour Guide one-day Introduction to Mediation training programme.

 

Veerash can be contacted by visiting www.fairpractice.co.za.

 

 

 

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