What is Mediation?

By Zakiya Bulbulia

 

What is Mediation?

Mediation is a process where disagreements over various issues or disputes are resolved by a neutral third party (a Mediator). The role of the Mediator is to facilitate discussions and understanding around issues of dispute/conflict in order to reach mutually acceptable solutions and agreements.  The Mediator may also provide information pertaining to the applicable Law.

What is Family Law mediation?

Family Law Mediation is a peaceful yet effective alternative to divorce litigation.  It is a form of dispute resolution between two or more parties with concrete effects. The basis of these disputes arise from issues of :

  • Custody, Access and Maintenance of the child(ren), and/or
  • Division of assets and spousal maintenance
  • Customary Law Issues
  • Parental Rights, including the rights of unmarried fathers

Successful Mediation thus preserves the relationship between parties particularly when future communication between the parties is necessary in the upbringing of their children.

What is Court-Annexed Mediation?

The Rules Board for the courts of Law have amended the rules regulating the conduct of proceedings of the Magistrates Courts of South Africa with a view of introducing alternative dispute resolution mechanisms by way of court-annexed mediation, aimed at facilitating an expeditious and cost-effective resolution of a dispute between litigants or potential litigants, as well as assisting litigants or potential litigants to determine at an early stage of litigation or prior to commencement of litigation, whether proceeding with a trial or an opposed application would in fact be in their best interests or not.  There are rules applicable to these mediation sessions but will not be discussed here.

If the dispute is resolved, and Mediation successful, not only is a settlement agreement incorporating the terms of the settlement drafted and filed at court to close the matter, but the parties can continue their business relationships and dealings without any negativity;

Can parties be legally represented at Mediation?

Although a party may be legally represented at mediation, both parties must attend the sessions in person. In the case of a juristic person or a firm or partnership, a duly authorized representative must attend the mediation proceedings and enter into discussions on the juristic persons behalf.

Advantages of Mediation?

The benefits of mediation are:

  • Cost—The mediation process generally takes much less time than pursuing a case to Litigation. Parties may also agree to share the already reduced costs of this process.
  • Confidentiality—While court hearings are public, mediation remains confidential and inadmissible as evidence in any court unless otherwise discoverable in terms of law;
  • Control— Parties retain control over the outcome.
  • Comfort – The matter is dealt with in the comfort of a private office/boardroom as opposed to unnerving Courtrooms
  • However, without an open mind and a commitment to resolve the matter, mediation may not always provide finality, but it is never a wasted effort.

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