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Thought Thursdays

 Why Mediation?

2012-06-08 09:00
Mediation is the process through which a neutral person, the mediator, attempts to help the parties to a dispute or conflict to resolve their differences by agreement. Provided that the parties are willing and their legal representatives (if any) are knowledgeable about mediation, the dispute can be resolved far more quickly and far less expensively than would be the case if the dispute were referred to the courts or arbitration for resolution. In addition, the parties – not the mediator – determine the outcome and so can manage their risks better. Where they are in a long-term business or other relationship, mediation can also help to repair the damage done by the dispute.

The South African civil justice system is set to receive a major overhaul with the planned implementation of compulsory mediation in civil court cases.

This follows an announcement by the Department of Justice in October last year of a pilot project on Court-based Mediation in selected High Courts.  If the results of the project are satisfactory, the system – which will make mediation compulsory – will be implemented countrywide.

According to Prof Barney Jordaan, head of the Africa Centre for Dispute Settlement at the University of Stellenbosch Business School, a set of mediation rules is expected to be finalised soon.  

This will fundamentally change the South African civil justice system and will bring it on par with some of this country’s most important trading partners abroad, as well as other African countries. It will also be brought in line with the system of mediation and conciliation that has been used in labour disputes in this country already for many years.   

Jordaan says, apart from this, there are two main driving forces behind the initiative – to relieve congestion in the courts and to provide greater access to justice for all.  The delay in obtaining a court date (it can literally take years) and high legal costs render the legal system unavailable to many.
He says that the Department’s initiatives can most definitely be successful. There is enough proof elsewhere that mediation can be highly successful; but there are nevertheless a few provisos.

Firstly, parties to a conflict need to restrain their tendency to use litigation (including arbitration) as a first course of action and should rather opt for and utilise the advantages associated with mediation.  For corporates involved in disputes, this will also partly satisfy their good governance obligations as set out in the King III report on good corporate governance.

Secondly, the legal profession needs to be convinced (maybe even by its clients) that mediation usually is in the best interests of its clients. Lastly, quality control in the form of rigorous certification standards needs to be applied over the individuals appointed as mediators.  This will prevent the risk of the process becoming a mere rubber stamp on the road to litigation.  

The Africa Centre for Dispute Settlement presents the Postgraduate Diploma in Dispute Settlement, mediator training, an executive development programme in Commercial Negotiations and a Master Class in Designing a Deal.
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