Mediation is a consensus-seeking process in which the parties remain in ultimate control of the outcome. The key elements of mediation are that it is a voluntary, confidential and flexible process facilitated by a neutral third party. This definition highlights the differences from arbitration and litigation processes which are rights-oriented processes where the outcome is determined by a third party or a court.
In a mediation process, the selected third party, the mediator, facilitates a conversation between the disputing parties. Mediation is a collaborative process in that the mediator meets with the parties in a series of joint and private meetings. The entire mediation process and the discussions in the side meetings are confidential, without prejudice and off the record. There are no witnesses or public observers, as there may be in a litigation process. Mediation is less formal than arbitration or court litigation as the mediator does not hear evidence but instead assists the parties to explore their positions, interests and needs in order to find common ground through open dialogue and negotiation.
Because the mediation process is so dynamic, mediators can employ different models and styles of mediation, such as facilitative, evaluative, transformative and narrative mediation, depending on the context and the parties in the process. Most mediators adopt a facilitative style where they guide the process to enable the parties to negotiate effectively. Evaluative mediators, on the other hand, intervene more in the negotiation and, with the parties’ permission, may comment on the merits of their cases and propose solutions.
Mediation and conciliation are very similar. The main difference between mediation and conciliation is the role played by the third party. The mediator has no authority to settle the dispute but to simply encourage the parties to reach an agreement. Conversely, in conciliation, the third party directly drives the parties to a resolution by proposing and presenting solutions for settlement. The conciliator in the CCMA, for example, must determine a process to attempt to resolve the dispute, which may include mediating the dispute, conducting a fact-finding exercise, and making a recommendation to the parties, which may be in the form of an advisory arbitration award.
If parties are unable to resolve their dispute through mediation or conciliation, they are free to seek recourse through other processes including arbitration or litigation.
Arbitration is like a formal court proceeding, in that the arbitrator’s role is similar to that of a judge except that the process is not open to the public and does not take place in a courtroom. The arbitrator has the power to render a final and binding decision called an award, which is legally enforceable and can only be reviewed, not appealed. Thus unlike a mediator who facilitates a negotiation process where the parties determine the outcome, an arbitrator conducts a process where evidence is considered and the arbitrator decides the outcome of the dispute. As a dispute moves out of the hands of the parties from mediation to arbitration, the parties lose control of the outcome.
Unlike arbitration, litigation takes place in a public courtroom and there is a public record. The judge hears evidence and argument as an arbitrator does and makes a decision, which in the case of litigation is not necessarily final and binding because it may be subject to appeal to a number of further higher courts.
Arbitration and litigation are adversarial processes with a focus on the past which witnesses are brought to recount. There is generally a clear winning and losing party. Litigation is often time-consuming, emotionally draining, expensive, unpredictable and may not provide the best solution for both parties.
Mediation is emerging in South Africa as an effective and often preferred method for resolving disputes because it has the capacity to deliver better outcomes that parties can determine for themselves in a flexible, facilitated, negotiation process. The outcome of a mediation is written down in the form of a settlement agreement and is binding and enforceable.
South Africa is in need of good mediators. By participating in the Commercial Mediators Skills Training course offered by Conflict Dynamics coming up on the 11-16 February 2021, you can be equipped with the necessary skills to mediate many types of conflicts and disputes. Click HERE to read more.
“Conflict is inevitable, but combat is optional” – Max Lucade