Here's why mediation works

We recently asked Managing Director, Mr Gerrit Duvange our in-house mediation expert a few questions about mediation and how it can assist people and businesses alike. 

1. Mediation has long been recognised by the courts in South Africa as an alternative form of dispute resolution.  What are some of the recognized benefits to mediation?

I agree with the statement and the court’s attempt to enforce parties to involve themselves in a process of mediation before a matter is enrolled on the court roles.

I personally believe its a matter of time before it will be enforced. 

The benefits of mediation the following:

• Flexibility that is given to the parties

First, parties can select the mediator with a background in the particular area in which they have their dispute.  Thus where parties are involved in a construction defect matter, they can select an attorney with experience in construction litigation.  They may even select a contractor who has been trained as a mediator, who often times can quickly understand the nuances of the construction dispute.  The mediator can then rely on past experience to determine how best to fashion a settlement.

• Mediation is confidential

The mediation process and negotiations are confidential.  Furthermore, mediators cannot be compelled to testify about the events in a mediation should the settlement break down.  This confidentiality often allows the parties to be more frank and divulge more information than otherwise might be the case in simple face to face negotiations, knowing their communications will be kept in confidence.

• The parties are in control of the process

In negotiations, a settlement generally occurs only where parties believe they are on equal footing.  In most negotiations, however one, one party believes that they have a superior bargaining position or higher moral imperative than the other, which often prevents a settlement from occurring.  In litigation and arbitration, the parties give up all power to a third party who renders a decision, which neither party may be happy with once it is issued.

• Mediation allows the party to shape a “win win” solution

Although courts or arbitrators will sometimes fashion a remedy which may benefit both parties, that is most often not the case. Should the matter proceed to trial, the court will usually decide a winner and a loser.  The loser, unhappy with the decision, will often prolong the agony of the dispute by appealing an adverse decision, thereby increasing the anxiety, cost and risks of litigation.

• The parties are free to fashion whatever result they desire

Although this often means compromise on the part of one party or the other, the compromise is generally more beneficial than proceeding to trial.

• Mediation provide finality

As mentioned above, a decision in litigation or arbitration does not necessary mean an end to the dispute.  It may, in fact, promote additional animosity which prevents the parties from attending to their normal occupation.  Remember, every minute spent with your lawyer means that you are unable to work at your chosen occupation.  Litigants are thus forced to not only pay their attorneys, but they also lose the benefit of their time, thus incurring a “lost opportunity cost” that can never be recovered.

2. What is the difference between litigation and mediation and why do you recommend mediation?

With overburdened courts, lengthy trials and exorbitant litigation fees,  mediation, already popular internationally, is often overlooked as a solution for individuals and businesses to resolve disputes in South Africa.  Not only has it proved to be cost effective but more importantly mediation is less destructive and fair with speedier resolutions being reached, compared to the lengthy litigation route which can taking anything between 2 to 4 years.  Litigation is much more time consuming and costly than a process of mediation.  Litigation often results in extensive waiting periods before matters are heard at court and further infringes the attainment of access to justice.

3. Can you mention instances in your years of experience where mediation has assisted your clients without naming any individuals or organisations? I am on a daily basis utilising my mediation skills to assist parties in all kinds of disputes for instance sectional title disputes, family disputes, disputes between a purchaser and a seller in a property transaction to resolve disputes within a question of a week or two instead of costly litigation through the courts which can take upanything from 2 to 3 years and the dispute running up legal costs in the Magistrate’s Court between R70 000.00 to a R100 000.00.

Contact us today to schedule an appoinment with Mr Duvenage who can assist with your dispute matters.