Conflicts have been around from the time that people were created, and they are common in human existence.
In an attempt to ease the backlog that our courts are facing, our government has passed laws that assist in obtaining access to justice through mediation, as an alternative to litigation, which tend to be longer and expensive.
- What is mediation?
- It is a process by which a third party, called a mediator assists the parties in a legal dispute by facilitating discussions between the parties, assisting them in identifying issues, exploring areas of compromise and options in an attempt to resolve the dispute (gov.za).
- The process is voluntary.
- Advantages of mediation:
- Offers speedy resolution of disputes.
- Cheaper than litigation.
- Provides a win-win situation for both parties in a dispute.
- The process is flexible.
- It promotes reconciliation and the spirit of ubuntu.
- Parties can use their own languages.
- Mediation provides the parties to a dispute with an opportunity to find solutions for their problems, making it easy for the parties to accept the outcome.
- The role played by the mediator in the mediation:
- Helps parties have improved communication.
- The mediator must be neutral, non-biased and impartial (shows no favor to either party in the mediation process).
- The mediator must not provide legal advice to the parties, even though it might happen that the mediator is a legal practitioner, parties should seek legal advice from their own legal practitioners.
- Where to go for mediation services?
- Parties can approach the mediation clerk in the Civil Section of the Magistrate’s Court which has jurisdiction in respect of the dispute.
- Which matters can be referred for mediation?
- Most disputes are suitable for mediation, as long as the court has jurisdiction in respect of the matter, ie: labour law related disputes, family law related disputes.
- Will there be court fees?
- There are no court fees, however, the mediator can charge a fee according to the applicable tariff and this fee must be paid by the parties in equal shares.
- Who will be the mediator?
- Parties may agree as to the identity of the mediator, however, where they can not reach an agreement, the clerk will choose a mediator for them.
- Can parties attend mediation with their lawyers?
- Legal representation is a right which is protected by our Constitution; however, parties do not have to attend mediation with their lawyers, but if they so wish, they may attend to mediation with their lawyers.
- When to mediate?
- Parties may mediate where litigation has commenced, is in process or has not even commenced (as long as a court judgement has not been given yet).
- Can the mediation agreement be made an order of the Court?
- Yes, and where one party fails to abide by it, it will have same consequences as when a party is in breach of a Court Order.
- What happens if mediation fails?
- Parties can still follow the litigation route in order to have the dispute resolved.
In the event that you require assistance with regards to anything said in this article, please do not hesitate to contact our offices.
