Boomerang Mediation

04 September 2020

Since lockdown began on 26th March 2020, Conflict Dynamics has had 26 enquiries about setting up a mediation. In each instance, our case management staff discussed the dispute with the enquiring party, and mediators were approached to indicate their availability and rates.

In some cases, mediations went ahead online, with parties following the Conflict Dynamics Guide to Online Mediation for Parties and Representatives, and mediators following our Guide to Online Mediation for Mediators. We conducted sessions with our mediators on how to mediate using the Zoom platform, and we amended our model Agreement to Mediate to include clauses pertaining to online mediation.

In other cases, parties decided to wait until lockdown eased before deciding to go ahead. We have now noticed that parties who delayed their mediations are returning to us to enquire about setting up the mediation previously contemplated. Processes are now being confirmed and taking place both online and face-to-face. We call these ‘boomerang mediations’.

Conflicts and disputes generally do not resolve themselves, so negotiation or mediation becomes inevitable, and the question therefore is, when is a conflict or dispute ripe for mediation? There are no hard and fast rules about this.

Concerns are expressed about a ‘culture of late settlement’ in the civil justice system as it is thought that mediation should be attempted as early as possible in the life of a dispute, even before any formal proceedings are instituted or as soon as possible thereafter.

To this end, High Court Rule 41A sub-rule (2) compels plaintiffs and defendants to file Mediation Notices before summons or applications, pleas or opposing papers are issued. Conflict Dynamics has prepared a set of specimen Notices, Joint Minutes and Agreements for use in terms of High Court Rule 41A.

The costs of conflict, not only in terms of lawyers’ fees, but also in terms of management time and reputational costs, demonstrate the value of early resolution of a dispute. The potential cost of dispute resolution being delayed is obviously a particularly important consideration in assessing a party’s interests in mediation.

It could be said that disputes become ‘riper’ for mediation as the costs mount but on the other hand, once money has been spent and time has been lost, they have gone forever and parties may think at a certain point that as a result they might as well litigate. Because of the risk of interlocutory applications and possible reviews and appeals, there is, of course, no certainty that the costs will abate soon and a party’s refusal to mediate may result in an adverse costs order at the end of the trial.

It has been argued that mediation may be more effective after a period of adversarial conflict after some ‘steam’ has been let off or the realities of costs of adversarial conflict have become apparent. The parties may then be more likely to realise the risks inherent in continuing conflict and be more emotionally detached. Of course, the converse could also be true. They might also have dug themselves into fixed positions, and have incurred significant costs that need to be brought into account and that make settlement more difficult.

Advisors to disputing parties must consider all of these possibilities. They must also take into account whether or not the party has a full understanding of the issues in dispute, and has enough information to make an informed decision about possible solutions; whether a dispute involves or may impact on other parties not yet identified or who have not yet been brought formally into the dispute process; the interests of the other party to the dispute, the likely pressure that it will be under and the costs and other timing implications that will impact on its negotiation position; whether the dispute is driven primarily by financial considerations; and whether there are important technical considerations or matters that would require expert evidence. All of these considerations may impact on the timing of mediation.

One risk of proposing mediation early may be that an offer to mediate is perceived (wrongly) by the opposing party to be a sign of weakness. This may give rise to unrealistic or inflated expectations in any negotiation that follows. In the absence of a strong mediation culture in commercial disputes, this kind of perception may bedevil attempts at early settlement. But, we expect this consideration to play a smaller and smaller role in decisions on the timing of mediation as parties and their representatives become better informed about the role and benefits of mediation as a dispute resolution process, and as mediation becomes entrenched in our civil justice system through Rule 41A.

If you have a conflict or dispute which you think is ripe for mediation, please contact us for a discussion about how to set up the mediation. Whether it takes place online or face-to-face, Conflict Dynamics has a team of knowledgeable case management staff and a panel of experienced mediators to assist you to resolve the conflicts and disputes which might be holding you back from moving forward as the lockdown eases.

To discuss mediation call Craig Hulscher on +27 11 669 9578 or email him at craig@conflictdynamics.co.za

- Felicity Steadman