So, what about mediation?

Sponsored Content

BUSINESS NEWS - Epictetus was big on choices. Simple and clear choices. He identified all matters in his life as those under his control and those that are not, and then concerned himself only with those matters he believed to be under his control. He was also the guy who coined the noble truism that we cannot choose what happens to us, but we can choose how we react to it.

If good things come to those who wait, trouble often shows up straight away, no choices necessary. Differences and disputes are as old as humanity itself, as are our terrifying inventions through the ages to deal with them. From flint axes to nuclear aircraft carriers to … well … lawyers.

Anyone who ever had to have a dispute determined through litigation in court knows that it can be a long, uncertain, and eye-wateringly expensive endeavour, even if you were successful. It is true that some disputes require legal intervention.

And defendants often have few options but to participate in litigation they are cited in. However, there are alternatives to litigation as a method to determine disputes to consider. So, what about mediation?

Mediation is a voluntary process for resolving disputes by mutual agreement.
Other than a determination by courts or by an arbitrator, no decision can be imposed by the mediator. Any settlement that the parties arrive at is through their own making, facilitated by the mediator.

The common aim of mediation is to find a mutually acceptable resolution to the dispute the parties face, as long as the solution is not immoral, illegal, or oppressive. The process is without prejudice and any concessions, statements or offers made in the mediation process cannot be used or referred to in subsequent court proceedings.

Some factors to bear in mind when considering voluntary mediation:

Costs – The costs of litigation can be prohibitively expensive. By contrast, the costs of mediation are limited to the mediator’s fee and the parties’ own costs of legal representation, should they choose to have any.
Time – Litigation can take years to conclude, and time is money. Parties who choose mediation determine their own pace and timelines. Many mediations are concluded within a few hours.
Simplicity of process – As a contractual process, the parties determine the framework and procedures of the mediation by agreement, or through the adoption of a set of rules such as the mediation rules of the South African Association of Arbitrators. Because mediation is not a legal process, parties are not required to prepare legal documents and pleadings as they would have to do in litigation.
Control – The parties have control of the process and are not constrained by external factors such as congested court rolls. As parties are not bound by the determination of a judge or magistrate, they voluntarily agree on a solution best for them.

If you are interested in exploring mediation as a way to resolve disputes, contact Jaco Lötter from Tonkin Clacey Inc. Mossel Bay for a free consultation. Jaco is a Fellow of the Association of Arbitrators, South Africa and a trained mediator through the Society of Mediators, London. Let us help you make the right choice.

*Acknowledgements: Practical Mediation, Jonathan Dingle FSOM MCIArb FRSA, The Society of Mediators, London, 2021.