Mediation As A Form Of Dispute Resolution In South Africa
Conflict and disputes are inevitable – be it in the workplace, within the family, the community or in the world of commerce.
I have been an employment law Attorney for nearly 20 years. I have argued cases – some simple and some complex – on behalf of both employers and employees in Bargaining Councils, the CCMA and the Labour Courts. I have won cases that I should never have won and lost cases that I should never have lost.
As soon as you step into a Courtroom the matter is largely out of your control. Of course I will always argue your case to the absolute best of my ability but there will always be a winner and there will always be a loser. And often even the winner feels like they have lost.
When it comes to litigation there are many dangers and pitfalls – costs, the inevitable delays as well as the risk of an adverse finding to name a few. However in recent years South Africa has seen a rise in the use of Alternative Dispute Resolution (ADR) methods in a number of areas of law such as employment law, commercial law and family law. One of the most successful methods is mediation.
What is mediation all about?
Mediation is a voluntary process in which an independent mediator assists the parties to a dispute in finding solutions to that dispute. While it sounds pretty simple there is actually a lot that goes into it.
The beauty of the process is that it is entirely voluntary and that the resolution of the conflict or dispute is in the hands of the parties as opposed to an Arbitrator or Judge. It is also, unlike the Courtroom, not about who is right and who is wrong but is solution driven and aimed at restoring the relationship between the parties.
Mediation is also a confidential process and the mediator may not, without permission, disclose information that is given in confidence. There is immense freedom in this in that parties can essentially say whatever is on their mind in total confidence, safe in the knowledge that it will not be disclosed unless they expressly permit this.
The role of the mediator is not to solve the problem for the parties or to agree with one side but rather to help them find creative solutions themselves. Of course the mediator may suggest solutions but their primary role is to assist the parties in coming up with their own solutions.
Advantages of mediation
There are many advantages to using mediation as opposed to litigation to resolve a dispute. The first, and arguably most notable, is that the power to resolve the dispute remains in the hands of the parties themselves.
Experience has shown me that there is immense value in this in that both parties buy in to the dispute resolution process which creates a feeling of ownership over the solution. This is especially so in workplace disputes where the argument is not just over money.
The second big advantage to mediation that I have found is that it has the potential to restore a relationship between the parties. Whether this is a working relationship, family or commercial relationship – one avoids the unpleasantness of a courtroom battle and can focus on repairing and restoring the relationship.
The third is the cost factor. Yes, mediation comes with a fee attached but this is a fraction of what a long drawn out legal battle would cost.
And the fourth advantage of mediation is that the long drawn out legal battle is avoided. One should never underestimate the mental cost of litigation. The Courtroom is not a fun place to be and it should be avoided if possible. Mediation needs to be seriously considered before one engages in a legal fight – and the earlier the better!
Not all disputes or conflict can be resolved by mediation however it is a powerful form of ADR which is often overlooked. A skilled mediator can help potential combatants resolve their dispute long before it reaches a point of no return and can save them time, money and most importantly can help to restore a damaged relationship.