In recent years, mediation has been gaining traction as a promising solution to the two major challenges plaguing our legal system: the congested court rolls and the lack of access to justice as outlined in our Constitution. This method of dispute resolution has even been formally incorporated into both the Magistrates Court Rules and Uniform Rules of Court and has undergone a successful pilot project in two provinces.
It is no secret that our courts have been operating far below optimal efficiency. Not only does this result in lengthy delays in delivering justice, but it also incurs unnecessary legal costs that often disadvantage the most vulnerable members of our society. Before we can determine whether mediation is a viable solution, it is important to understand what the process entails.
Mediation is a form of dispute resolution where the parties involved engage an impartial third party to facilitate a resolution to their conflict. This process involves identifying the root cause of the dispute and assisting the parties in finding a mutually agreeable solution. It is a confidential process that is without prejudice to the rights of any party.
The mediator, who is independent and impartial, begins by obtaining versions of events from both parties and then skilfully communicates with them to find a resolution. The mediator never makes a finding or directive to either party. Rather, the parties work together to find a resolution that suits their needs. The goal is to find a mutually beneficial outcome quickly and efficiently, without the need for extended cross-examinations or long delays in obtaining judgments.
Mediation is a relatively quick and inexpensive process that can often resolve disputes within half a day or a day at most. The informal nature of the process also helps to reduce legal costs significantly, making it more accessible to a larger segment of our society. In addition to and unlike litigation, mediation is not bound by jurisdictional issues, and the outcome can take many different forms.
In civil litigation, the parties often only begin to consider the risks of the trial after months or even years of incurring high legal costs and after following the legal process. Parties often settle on the day of trial, “on the steps of the court” to avoid the uncertainty of the outcome and to ensure that the resolution of the dispute makes commercial sense. However, by that time, the parties have already incurred significant legal costs.
Effective mediation can help parties obtain certainty about the outcome while significantly reducing legal costs. The more disputes that are referred for mediation, the less pressure there will be on the legal system and the less congested our court rolls will become. It is however recommended that parties still have legal representation present during mediation to obtain legal advice throughout the process.
If the parties are unable to reach an agreement, the option of litigation remains available, and nothing discussed during the mediation process can be used as evidentiary proof should litigation follow as all discussions are confidential and without prejudice. By choosing to attempt to resolve their dispute through mediation, parties give themselves the opportunity to come to an agreement without having to go through a strenuous litigation process, only to find themselves settling their dispute on the steps of the court.
By Andries Stander | Director
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