With overburdened courts, lengthy trials and exorbitant litigation fees, mediation, already popular internationally, is often overlooked as a solution for individuals and businesses to resolve disputes in South Africa. Not only has it proved to be cost-effective but more importantly, mediation is less destructive and fair, with speedier resolutions being reached compared to the lengthy litigation route which can take anything between two to four years.
What is mediation?
Simply put, mediation engages a neutral third party who does not judge the case but helps facilitate a discussion, limit the issues, and put them in perspective to resolve a dispute. Mediation is a fraction of the cost of a traditional court case, more confidential and timeous than litigious, lengthy and expensive court battles, and highly effective in resolving conflicts peacefully.
It is promising to note that over 60% of matters settled through mediation are successful. PJ Veldhuizen, CEO of local law firm Gillan & Veldhuizen says that often the decision to go the mediation route is perceived as ineffective and as a result not the path chosen by many. Disgruntled parties, who typically act on emotions will immediately threaten court proceedings and so commences the long and expensive process of litigation.
Veldhuizen says, “In most instances, I will recommend that our clients go the mediation route, and even if the parties cannot agree and the dispute ends up in court, at least the parties involved have stronger cases, having had the bones of the issues laid out in full so the attorney will know what to prove in court, without the predictable delays and appeals common with the litigation route.”
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| MEDIATION | LITIGATION |
| Who is involved? | One mediator trained for that particular area of expertise | Each party retains an attorney |
| What are the costs? | R20 000 – R30 000 The parties share the cost of the mediator | R250k – R500k Often one party will be liable for all legal fees |
| Confidentiality? | Entirely confidential | Becomes a part of public record |
| Differences in the process? | Peaceful and amicable | Adversarial and litigious |
| How long does it take? | Decided upon by the parties involved | Can take between 2 to 4 years |
| Who makes decisions on the issues of dispute? | Facilitated by the mediator, parties reach workable solutions | Lawyers and the courts decide on the outcomes |
Paramount to the success rate is the importance of selecting an accredited mediator with experience in the relevant sector, i.e. commercial, family, construction, corporate law, etc., who is trained to be a good listener, empathetic, objective and patient. The Law Society of AFSA will appoint a mediator if the parties cannot agree upon one.
The process
- Appoint a mediator and agree on venue, costs, date and time to meet
- Set out the ‘rules of engagement’
- Each party makes an opening statement
- Mediator facilitates an open, honest dialogue between the parties to reach an amicable resolution
- Parties are able to offer opinion and feedback privately with the mediator
- Prepare settlement to be approved and signed by both parties.
The mediation process is focused on problem-solving techniques and not ‘winning versus losing’ and usually leads to better relationships and outcomes for everyone, so it is well worth considering.