What is mediation?
Mediation is the process whereby a neutral third party assists parties involved in a dispute to arrive at an agreed outcome. Mediators assist in identifying issues and information needs, reducing obstacles to communication, exploring alternatives and focusing on the needs and interests of those most affected by the dispute. Unlike court proceedings, mediation involves the direct participation of the parties, who often work alongside instructed legal representatives. We focus specifically on the commercial application of mediation, but the process and the principles underlying it are generically applicable across a whole range of disputes, including family, labour and community disputes.
Why mediate?
People in business are beginning to realise that litigation is often costly, both financially and in terms of organisational stress and time consuming for individuals across different parts of the organisation. As the litigation process focuses on a strict interpretation of applicable laws, the outcomes produced by litigation often ignores the interests and needs of the parties - economic and business factors are not considered by the court. They are also beginning to realise that cost saving is not just a business imperative, but an ethical one as well.
Both in SA and elsewhere (e.g. certain other parts of Africa, the UK, USA, Canada, Australia, Asia, and the EU) mediation is increasingly being used as a more effective means of resolving disputes, simply because mediation offers advantages:
- Comprehensive and customised agreements – solutions can often be more creative and wider in scope than could normally be achieved through legal process
- Greater degree of control and predictability of outcome - parties who negotiate their own settlements have more control over the outcome of their dispute and more personal empowerment in the resolution
- Rapid settlements - in an era when it may take as long as a year for a case to proceed to court and multiple years if a case goes to appeal, the mediation alternative often provides a more suitable option
- Mutually satisfactory outcomes – as solutions are agreed rather than imposed by a third party decision maker
- A higher rate of compliance – as a result of the satisfactory outcome, parties are more likely to comply the terms of the solution ensuring that the agreement remains in tact over time
- Preservation of an ongoing relationship or termination of a relationship in a more amicable way - a mediated settlement that addresses all parties' interests.
- Research in the UK revealed that roughly 60% of commercial disputes are resolved at mediation with a further 20% being resolved within two months of the mediation intervention.
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