What is Mediation?

07 September 2020

On the 9th March 2020, a new High Court rule, Rule 41A, came into effect. It requires that before summons or applications, pleas or opposing papers are issued in the High Court, plaintiffs and defendants must file Mediation Notices indicating whether they agree to the referral of their matter to mediation and if not why. Mediation is also contemplated in Section 13 of the Disaster Management Regulation and in at least 50 existing pieces of legislation.

South Africa has a world-renowned tradition of mediation and a huge capacity and capability in, for example, the Commissioners of the Commission for Conciliation, Mediation and Arbitration, as well as many international accredited commercial mediators.

However, what exactly is mediation?

Mediation is a process in which a neutral third party facilitates the communication and negotiation between disputing parties with a view to them reaching a settlement agreement. The third-party, the mediator, is selected by the parties from a panel of trained and accredited mediators. The mediator and the parties sign an Agreement to Mediate to establish the framework for the process. The key principles in the Agreement to Mediate are that the mediation is:

  • confidential, meaning that what is discussed in the mediation cannot be disclosed outside of the mediation and the mediator will keep everything discussed confidential and will only convey what he/she has permission to convey to the parties;
  • without prejudice, meaning that what is discussed in the mediation cannot be used in any other forum and is inadmissible in court;
  • there is no agreement until it is written down and signed by the parties, at which point it becomes a binding contract;
  • a voluntary process, although as mentioned above parties contemplating litigation in the High Court must explain why they have decided not to use mediation before they litigate;
  • a process of negotiation for which all parties present in the mediation will have a mandate or authority to negotiate.

A mediation meeting is private and normally attended by the mediator, the parties and their lawyers. The mediator assists the parties and their lawyers to understand the claims and issues in dispute, as well as their interests and needs. The mediator then assists the parties to work creatively as they bargain, exploring with the parties the risks they might face if they do not settle. Mediators are not judges, they do not give advice, make recommendations or express opinions on the merits of the case.

Over the past few decades, mediation has proven to be very effective in South Africa in resolving labour/management and employment disputes. The negotiations that facilitated the peaceful transition to democracy in South Africa were premised on the same principles that underpin mediation.

Did you know that not only are the outcomes in mediation potentially better than in litigation, but settlement rates are high and compliance with agreements is high too? Most mediators settle in a day or less. As mediation becomes more widely understood, it will undoubtedly become the most utilized process for resolving disputes.

Find out more about the Conflict Dynamics mediation services HERE.

- Robin Monakali