Mediation is voluntary, and the settlement of any dispute is entirely voluntary, although a judge may order a case to first proceed to mediation.  Furthermore, the mediation process may be terminated at any time by the mediator or by anyone of the parties. If parties cannot reach a mediation agreement they still have the right to take the dispute to court.

The specific interests of children are carefully considered in mediation. A good mediator will also help the parties in family matters to maintain a strong focus on their children’s wellbeing. Mediators can also refer disputing parents to parenting classes or counselling to help reduce conflict and to maintain a positive parenting relationship for the sake of the children.

When people are involved in a disagreement, they can agree to a voluntary process called Mediation. Typically, a Mediator then assists the parties to negotiate a settlement between them. The parties jointly buy-in / appoint the Mediator to help them understand their issues with one another, and to look at ways of solving their dispute. In practice it is normally one of the parties that request mediation or approach a mediator and then persuade the other party that this is the way forward.

The Mediator facilitates and directs the process and he acts as a neutral third party. The Mediator does not decide on the issues nor does he make any ruling (like a judge or a magistrate in a courtroom would do). Rather, it is the disputing parties who agree to their solution.

The mediation process is private, confidential and voluntary. More specifically, the mediation process is formally structured with a timetable unlike “ordinary” negotiations.

Mediators use special techniques to help people with an open dialogue. Much depends on the mediator’s skills to make both parties feel heard and to gain the trust of both parties.

Mediation, is also referred to as a form of alternative dispute resolution (ADR), because it clearly differs from formal legal proceedings and court processes. A wide variety of disputes can be mediated, such as commercial, legal, property, workplace, neighbourhood and family matters.

What does the process involve?

The Mediator will begin with individual meetings with each party. These meetings are confidential and take around 1 to 2 hours each. Often there are more than one meeting. The Mediator will guide the parties on how best to proceed with the process. The Mediator will focus on the future to resolve the dispute, rather than dwell on the past, and he will also treat all parties equally.

If appropriate (not always the case), the Mediator will call for a face-to-face session with all parties present. The aim of such a joint session will be to consider how to reach agreement and create a working relationship.

If at all possible (and based on trust), a brief agreement can be drafted by the Mediator.  Such mediation agreements would usually include a joint plan to improve future relations.

Key stages of the process

As a general rule there are key stages in mediation (although every mediation is unique):

Before the mediation starts, the Mediator will be fully briefed by way of a case summary from each party and/or all the material documentation.

The mediation process is generally informal but the parties may record the basic rules and procedure that will apply during the process.

The parties will have to agree and appoint a Mediator – either directly or through lawyers.  A date will be set and a neutral venue agreed upon to commence the process.  Typically, the venue will have separate rooms for private discussions with each party and for face-to-face sessions (if appropriate).

During the course of the process the Mediator will meet with each of the parties in separate and private meetings. The aim hereof is to assist the Mediator and the parties to understand the key issues.  The Mediator’s role is to help the parties to engage in constructive negotiations.

After initial private meetings, a joint meeting of the parties and their lawyers may be convened to exchange views and identify issues.

Whilst working with the parties throughout the process, the Mediator uses his professional communication skills, legal knowledge and experience, to find an effective resolution to the dispute that satisfies all parties involved.

Generally, at the end of the process, a settlement is documented and the parties sign a written and binding agreement.

The dispute is then settled and both parties continue with their day-to-day business, including maintaining a working relationship with each other (if applicable).

• The role of the Mediator is to find a workable solution by looking at both sides of the dispute and to identify common interests.
• In cases of personal and emotional disputes, it is the Mediator’s role to manage emotions and expectations, and to create the right atmosphere for constructive negotiation.
• When agreement is reached, the Mediator will work with either sides or their legal advisers to conclude a binding legal agreement that will bring the dispute and any court proceedings to an end.
• Importance of Mediation
• The emphasis of South African Courts are moving more and more from litigation to that of mediation.