Fair Practice

The different processes of dispute resolution – Mediation and Litigation

10 Jun, 2021Blog, Mediation & Negotiation

Mediation

Mediation is a confidential process facilitated by an impartial mediator.

The disputants are in control of making the final decision that is realistic for their circumstances. This means that the disputants are given the opportunity to look closely at their own particular versions while exploring options together with the other disputant that will make the final agreements acceptable to all of them.

The process is managed by the mediator who keeps a balanced channel of communication between the disputants. This means that everyone gets an opportunity to be heard. The mediator will also address an power imbalances that present itself in the mediation.

The skills of a mediator are more intensive than just listening to what the parties say.

There is a deeper understanding of what drives the dispute elicited by the mediator using their effective communication skills. Emotions are addressed in mediation as a factor behind why disputants come to a particular decision or why it is challenging for disputants to finalise a particular issue.

We find that in mediation all disputants want the opportunity to share their side of the story and just to be heard. Mediation creates that safe environment for every disputant to fully understand the issues in dispute.

While mediation is not an evidence based process, disputants are given the opportunity to reality test their options and alternatives.

Mediation is voluntary that means that disputants get to choose to begin mediation, choose to remain in mediation and/or choose to reach agreement in mediation.

In mediation, disputants can reach decisions on all or some issues. This allows disputants the opportunity to first use mediation on issues that can be resolved through a facilitated negotiation process while taking any other issues that requires a presiding officer to make a ruling.

We often find that many of our clients who come in for mediation for some issues stay longer to resolve all issues because they begin to understand that the mediation process serves their best interests. The benefit of disputants having direct contact with each other takes away any delays waiting for replies and exchange of correspondence. In mediation disputants can tell each other directly their concerns and needs.

After reaching agreement, the parties can choose to agree to fulfill the requirements of their agreement or discuss in mediation whether to have the agreement converted into a court order.

Litigation

The litigation process is adversarial. There is a winner and a loser determined by a presiding officer. In litigation parties present evidence and rely on representation or their own efforts to convince the presiding officer that in most instances on a balance of probabilities they are correct.  The parties very rarely get to put forward to the presiding officer their concerns, fears, needs and interests and what drives the dispute they find themselves in. Submissions are fact based and controlled by evidence in support of the facts to find favour over another party. The process is positional and it takes up a lot of time waiting for documents to be exchanged and court dates to be given.

In South Africa to address the court back log and to make dispute resolution more accessible to parties, the legal system has endorsed the use of mediation as a first option in dispute resolution through the Court-Annexed Mediation Rules (Magistrates/Regional Courts) and Rule 41A (Uniform Rules of Court).

This means that legal practitioners must inform their clients that they must consider mediation before going to trial.

The court doors will always remain open for parties who reach partial or no agreement in mediation, however parties are cautioned that if they choose to not mediate or there is no  agreement reached in mediation they must provide compelling reason as to why mediation was not seriously considered and utilised as a dispute resolution mechanism.

This blog post is for information purposes only and is not legal advice. Please contact us to assist with your particular circumstances.

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