Captain James T. Kirk (Star Trek) once stated that: “I do not believe in the no-win situation”.
I’m not sure whether the Captain was much of a mediator but he did capture part of what mediation hopes to achieve – that parties who enter into mediation are both satisfied by the outcome and not one winning over the other. With many courts now opting for parties to engage in mediation before they progress in their litigation matters, it is clear that this is an innovative step by the judicial system to make problem solving more efficient and cost effective.
What is Mediation?
Mediation is a method of dispute resolution whereby parties agree to the assistance of a third party (mediator) to resolve their dispute. This may include discussions facilitated by the mediator and helping parties address and identify issues, assessing areas that may be open to compromise, and aiding the parties to create their own options to resolve the conflict.
Mediation gives the parties to a dispute the power to decide the outcome and possible solutions to the mediation. Reaching a conclusion that is beneficial to all parties involved is much more advantageous than having a decision taken that only favours one of the parties.
Process of Electing to Mediate
In terms of the rules, mediation is a voluntary process. Parties may elect to refer a matter to mediation at any point of a dispute; however it must be before judgement is handed down at trial. If however litigation has commenced, then court must authorise the mediation.
A judicial officer may during the course of litigation refer a matter to mediation; this means that the mediation process will be imposed by the court and not necessarily by agreement of the parties.
Once the matter has been referred to mediation, it is usually the Clerk or Registrar of court who deals with the request and the details of the mediation from there onwards. The Clerk or Registrar will require that the prescribed forms be completed and the matter will then be referred to an accredited mediator for mediation.
Advantages and Disadvantages of Mediation
The court annexed mediation rules, as contained in Government Gazette No. 37448, has various objectives for mediation being introduced into court proceedings. One of the main points highlighted by the rules is that mediation is a process that may preserve relationships between the parties to a dispute, which may become tensed or broken down due to the adversarial characteristics of litigation. An example of this would be in a family situation, and especially where there are children involved. Litigation is adversarial and may not always consider emotional and mental effects of a situation. However mediation allows parties to air all of their concerns including emotional concerns. This enables the parties to understand each other and possibly reach an amicable solution.
Mediation also allows parties to determine whether or not it is necessary to proceed with litigation, thereby making it a speedy and cost effective remedy. An important aspect to mediation is that it provides resolutions to parties that they may not be able to receive from judicial officers as they are limited to solutions provided for by law.
In mediation the parties are in control of the outcome, the mediator is only a facilitator of the process. This is beneficial to the parties because they have the freedom to choose which or what resolution is best fitted for them.
In certain disputes it may not be as cut and dry as “you are right and they are wrong”, sometimes a dispute comes with certain tradeoffs and mutual interests. In this situation mediation assesses these interests and provides unique resolutions. Whereas in litigation, judgement is given against one party, which results in the termination of the mutual benefit. It is a process that looks to resolve disputes without placing blame on any particular party to the dispute.
Due to the fact that Mediation is a voluntary process, parties are entitled to walk away from the mediation at any stage. If a party is not satisfied with the process – they may elect to try another avenue to resolve the dispute.
One of the main advantages of mediation is that it is confidential. Usually mediators would require parties to sign confidentiality agreements in order to protect themselves should the mediation process be unsuccessful. A mediator also may not give evidence on behalf of one of the parties to a claim against another party to the same mediation.
A disadvantage to mediation is that without concluding a settlement agreement – the resolutions to the mediation are not binding. Unlike a judgement, here the parties would have to draft and agree to a settlement agreement in order for them to enforce the outcomes of the mediation.
In certain situations there may be one party that is in a better position in the mediation than the other. This may result in the disadvantaged party being overpowered or bullied into settlement.
It is up to the parties to be forth coming and disclose all information that will assist the mediation process to reach a resolution. However if they do not do this, the mediation may be rendered unsuccessful or one of the parties may be left at a greater disadvantage.
Matters Suited for Mediation?
Most civil matters are able to be mediated, these may include:
- Labour disputes
- Lease agreement disputes
- Family disputes, for example maintenance issues.
- Commercial or business disputes
However, there are certain matters that are excluded from being mediation and are required to be decided by court:
- Criminal litigation
- Divorce proceedings
- Legal status issues, such as insolvency proceedings.
Role of the Mediator
The mediator is a facilitator; he/she does not decide the outcome of the mediation. A mediator is meant to assist the parties to generate or brainstorm solutions to their issues.
A mediator must be impartial. He/she cannot show favouritism or bias towards any of the parties. In addition to being unfair, this will create mistrust between the parties and of the mediation process itself and thus will likely end in an unsuccessful mediation.
Conflict and disputes are never easy to deal with in any situation. It may seem like there is a simple solution but that is not always the case. It is with this sentiment that the legal system needs the innovation that mediation provides people with. Mediation is a simple yet unique and fresh way to help people have more options available in a conflict.
A resolution does not need to feel like punishment. However, mediation works only as well as the parties to it – if parties to a mediation endeavour it to work, then it could work.
It will be inspiring to observe how courts will move to encourage people to work on mediating their disputes and to legal practitioners to being more open minded about mediation.
Written by: Vandana Maharaj
Acknowledgements: LSSA (LEAD) Court Annexed Mediation Course ; LexisNexis Practical Guidance – Dispute Resolution.