Suing someone is one thing. Becoming a party to the long trial that follows, is something else. If you are party to a divorce where children are involved, brace yourself as the maintenance court is up next. You will end up wishing you had avoided litigation altogether.
Mediation makes this possible. This cost-effective method of dispute resolution will make life easier for those who would previously have had to resort to court. The concept of mediation enjoys support to such an extent that court cases in North West and Gauteng may only proceed to court after mediation has been attempted. If this has been unsuccessful, the litigation route is followed.
Lowvelder consulted with local attorney and mediator Mr Pieter Nel, who enlightened the paper regarding the process. A mediator is as a third person who sits in when two disputing parties negotiate. The mediator is not a judge or an arbitrator – he does not steer the parties in any direction in as far as the outcome of their discussion is concerned. He does not tell them what to do. The mediator merely listens to both parties in a dispute and oversees their discussions.
The sequence of events in a mediation session are as follows:
Each party is allowed an opening statement, whereafter they are allowed a private session with the mediator to discuss the facts of the matter. The two parties then speak to each other in an attempt to come forth with a solution. The parties will then address each issue that they disagree upon and, when a middle-ground is reached, it is reduced to writing in a settlement agreement signed by both of them. “It follows that a mediator must be a good listener and must not impose his or her will on the two parties in dispute,” Nel explains.
The outcome of the mediation is determined by the parties themselves, which distinguishes mediation from litigation. The parties take responsibility for the outcome of their case, whereas the outcome is placed in the hands of a third person where a judge or arbitrator makes an order.
Who can become a mediator?
According to the South African Association of Mediators, no prior degree or diploma is required for those who want to qualify themselves as such. “Prospective mediators undergo 40-hour mediation training as well as 12-hour psychological and legal training.” Mediators must have character traits that are held in high esteem, as they are expected to treat disclosures made in mediation sessions with confidence. Any such disclosures will also be inadmissible evidence in court, should the case proceed to trial.
“Mediators must know the facts of the cases that they are mediating in detail. A mediator in a medical negligence case who confuses a femur and a tibia, won’t be very useful,” Nel says. Experts predict that increased redirecting of court cases to the mediation sphere, will greatly assist in reducing the workload that courts are burdened with. “It is a more cost-effective solution to disputes,” Nel says.
“People underestimate the effect that court proceedings have on parties’ emotional and psychological state. Parties will finally be able to solve disputes in a friendlier atmosphere. Where litigation usually results in strained relationships that eventually dissolve, mitigation promotes enhanced communication and problem solving. I am exited about the increase in mediation. It will certainly transform the culture of litigation in South Africa.”
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