“Mediation” means the process by which a mediator assists the parties in actual or potential litigation. Mediation is used to resolve the dispute between them by facilitating discussions between the parties, by assisting them in identifying issues, clarifying priorities, exploring areas of compromise and generating options to resolve the dispute.
What is mediation?
The Rules for court annexed defines mediation as follows:
“Mediation” means the process by which a mediator assists the parties in actual or potential litigation to resolve the dispute between them by facilitating discussions between the parties, by assisting them in identifying issues, clarifying priorities, exploring areas of compromise and generating options in an attempt to resolve the dispute. Not all disputes necessarily lead to actual or potential litigation.
Private divorce mediation (unlike commercial or labour mediation) is usually worked in sessions of one to two hours each, spread over a period of time, depending on how it unravels. It should be noted that divorce mediation is distinguishable from family mediation, the latter being wider in scope.
Facts about mediation
Mediation is FASTER than litigation. A lawsuit can take up to several months to several years to be decided.
Mediation is LESS EXPENSIVE than litigation, because parties typically split fees; no one pays an excessive amount.
Mediation is NON –ADVERSARIAL. Arbitration and litigation focus on disagreements between parties and result in win-lose decisions imposed by the arbitrator or judge.
Mediation focuses on an agreement between the parties and results in a win-win settlement reached and agreed on by the parties themselves.
Parties who agree to mediate RETAIN THE RIGHT TO PURSUE OTHER LEGAL REMEDIES. If parties cannot reach a mutually acceptable settlement during the mediation conference, they are free to arbitrate or litigate their dispute as if mediation never took place.
Difference between conflict and dispute
Conflict is the difference between two or more people. Conflict exists in a relationship when parties believe that their aspirations cannot be achieved simultaneously, or perceive a divergence in their values, needs or interests (latent conflict) and purposefully employ their power in an effort to eliminate, defeat, neutralise or change each other to protect or further their interests in the interaction (manifest conflict).
Dispute is a possible outcome of conflict, where the persons who have the differences are unable to find a resolution between them. A dispute is often the outcome when persons believe that they are unable to resolve their own difference and as such have reached a point of a “deadlock”
It is at the point of dispute that it is best to introduce a neutral third party to resolve the conflict through a process that is appropriate to bring about a solution that is acceptable to the parties to the conflict. It is the dispute between parties that would require some form of resolution. It is thus proper to refer to possibility of conflict being managed and disputes being resolved.
HOW DO WE MANAGE THE CONFLICT?
This would be dependent on a range of factors which could include:
Do we talk and present our views in an understanding manner?
Is there room for moving from our positions?
How does mediation work?
It is not requirement for parties involved in the mediation process to be represented by a lawyer. However, a party may choose to be represented and pay the legal fees of their legal practitioner. The responsibility of the mediator is to ensure a fair and structured process. Although the mediator is entitled to charge a fixed tariff in terms of the mediation rules, the cost is much lower than that of court litigation.
The Minister of Justice and Correctional Services fix the tariffs that mediators may charge and the amounts are published in the Gazette from time to time. This is to ensure that mediators cannot overcharge for their services.
In litigation matters, each litigant pays for his own costs, however through mediation; both parties contribute equally to the cost of the mediation, unless the parties reach an alternative agreement in regard to the costs.
The dispute is resolved amicably to the satisfaction of both parties to the dispute. Mediation promotes restorative justice and is less adversarial, it is a facilitative process.
The parties must find the best outcome that works for both. The mediator assists the parties to reach a negotiated settlement and avoid huge litigation costs; it saves time and costs for both parties.
How will I decide whether mediation is necessary for my dispute when I already have an attorney?
While most disputes can be mediated and potentially resolved through an effective mediation processes, it is very unusual for every dispute to be ripe for mediation or appropriate for mediation or able to be resolved through mediation.
Lawyers must take time prior to the commencement of litigation to work closely with their clients to establish what the broader financial, business, relationship and legal needs of the clients are. The lawyer and client must predict the needs of the other party’s to the dispute.
A risk and benefit analysis of the various options available to a client will provide a clearer picture to a client and the lawyer as to the appropriateness of mediation.
Mediation provides the opportunity of finding solutions beyond what the courts are limited to (Rule 71).
What is Parental Responsibilities and Rights Section 18 of Childrens Act 38 of 2005?
Section 18 of the Children’s Act 38 of 2005, specifies that
A person may have either, full or specific parental responsibilities and rights in respect of a child.
The parental responsibilities and rights that a person may have in respect of a child, include the responsibility and right to care for the child, to maintain contact with the child, to act as guardian of the child; and to contribute to the maintenance of the child.
Subject to subsections (4) and (5), a parent or other person who acts as guardian of a child must –
administer and safeguard the child’s property and property interest;
assist or represent the child in administrative, contractual and other legal matters; or
give or refuse any consent required by law in respect of the child, including
consent to the child’s marriage;
consent to the child’s adoption;
consent to the child’s departure or removal from the Republic;
consent to the child’s application for a passport; and
consent to the alienation or encumbrance of any immovable property of the child.
What is workplace mediation?
A Mediator can assist an organisation in both internal and external dispute resolution.
Internal disputes may be with or between employees, with or between board members, between board members and the employees.
External disputes may be with suppliers, customers and other stakeholders and both parties still need to continue with the relationship, but they are not sure how to resolve the dispute.
Especially in the workplace environment, it is of utmost importance to clear the disputes, to enable the parties to still continue with the working relationship, where both parties feel they are satisfied with resolving the dispute.
When to mediate?
List of circumstances where mediation is appropriate:
The court cannot provide relief
The client wishes to settle promptly
The client wishes to minimize costs
The client wishes to avoid a court precedent
The parties have difficulty negotiating on their own
The parties assess the facts differently
The parties have a continuing relationship
The clients wants confidentiality
List of circumstances where mediation is inappropriate:
A party cannot represent his or her best interests
Where one party is more powerful than the other
The party wants a court precedent
One of the major parties is unwilling to mediate
It is not possible to conduct the mediation without discovery of information, which one of the parties is not prepare to disclose
The mediation process has reached a stage where the parties can negotiate themselves without the intervention of the mediator. This should be done with careful consideration as parties have resorted to mediation for a specific reason
The parties do not perceive the mediator as an impartial third party and can become the source of differences, which could lead to the failure of the mediation.
Code on Corporate Governance about mediation:
The Code states the following at paragraph 81:
“It is incumbent upon directors and executives, in carrying out their duty of care to a company, to ensure that disputes are resolved effectively, expeditiously and efficiently. This means that the needs, interests and rights of the disputants must be taken into account. Further, dispute resolution should be cost effective and not be a drain on the finances and resources of the company”.
The Code goes on to state, at paragraph 84, that:
“External disputes may be referred to arbitration or a court. However these are not always the appropriate or most effective means of resolving such disputes. Mediation is often more appropriate where interests of the disputing parties need to be addressed and where commercial relationships need to be preserved and even enhanced”.
The New Companies Act:
A new Companies Act came into effect in South Africa on 1 May 2011. This Act provides that, as an alternative to applying to court or filing a complaint with the Companies Commission, a person may refer a matter either to the Companies Tribunal or to an agency or person for resolution of the dispute by mediation, conciliation or arbitration. The Companies Tribunal is a statutory body established by the Act to resolve disputes, while the other agencies or persons referred to would be private dispute resolution providers.
The provisions of the Act and the requirements of the Corporate Governance Code referred to above, together with the adverse cost order in the high court, will make it very difficult in future for any party to resist an attempt at alternative dispute resolution in the corporate arena.