• Mediation is a one method of alternative dispute resolution (or “ADR”).  It is an informal process in which a neutral third party, called a mediator, facilitates the resolution of a dispute between two or more parties. At its most basic level, it is a conversation between the parties, facilitated by a mediator, working towards a mutually acceptable solution. It is a process that takes a small fraction of the time, expense, and emotional energy of court litigation and, at the same time, also allows parties to reach a resolution that addresses their own interests. Solutions which might not be available in the formal setting of a courtroom can be reached.
• Decision-making authority always remains with the parties, not the mediator and it is the parties themselves who determine the outcome of their situation. The mediator assists the parties in identifying issues, fostering joint problem solving, and exploring settlement alternatives. The mediator does not make decisions nor give advice. Similarly, expert advice is never binding in mediation and the parties always retain their decision-making powers.
• Mediation is also less contentious and confrontational and may maintain (or give a means to maintain) relationships between parties. This can be particularly important in divorce mediations or other family disputes and when children are involved.
• The amicable settlement of disputes is, it has been said, the hall-mark of civilization.

• It is believed that nearly every community, country, and culture in the world has a lengthy history of using various methods of informal dispute resolution. Many traditional dispute resolution mechanisms in South Africa involved aspects of mediation or could even be regarded as a form of mediation.

• Mediation may be used successfully in a wide range of civil disputes (and very occasionally disputes arising from criminal conduct). It works best in cases in which the parties want to work out a solution and is particularly helpful where there will be a continuing relationship between the parties. This is particularly applicable in family disputes and where children are involved.
• Mediation can also be of particular assistance in disputes that have no simple solution and require creative solutions. It may even be used if court proceedings have commenced – provided that a final judgement has not been given.

The are a few important basic principles or policies applicable to all mediations but, beyond that, it is it’s flexibility which makes mediation work. The basic principles are:

1. Mediation is voluntary. This is important as even in cases where a court has ordered, or has required, the parties to participate in mediation, they are not obliged to reach a resolution. (Although, in a court ordered mediation, they would still be obliged to take part in the mediation in good faith) If any party to mediation finds that no acceptable solution or agreement can be reached, that party is free to terminate the mediation. It is only if an agreement is reached that is acceptable to all parties, and they commit to doing so, that the agreed resolution become binding upon the parties.
2. Mediation is confidential and privileged. Communications during a mediation are confidential (unless all participants decide to waive that confidentiality). The communications are also privileged, meaning that a party can prevent statements made in a mediation from being introduced against them in later court proceedings.
3. The rationale underlying these basic principles is that they tend to to create a secure and safe forum for parties to be able to brainstorm, share ideas or concerns and work freely toward a resolution. Beyond these basic policy rules the parties may, together with the mediator, agree upon other ground rules that will contribute to a successful mediation.
4. Mediation is, at its core, a process of negotiation between the parties – assisted and facilitated by the mediator. Without negotiation there can be no mediation.

People choose mediation for many reasons, including that –

1. Mediation is generally less confrontational than court proceedings, where the parties will be dealing with the issues in open court, in front of a judge and the public
2. There is greater privacy and confidentiality in mediation and the parties may find a respectful, cooperative and less pressured environment in which to make important decisions
3. Mediation can save time and money
4. The parties decide what issues to attempt to resolve during the mediation, they (not the mediator) decide on the resolutions of the issues and, if there is no resolution, the parties still have the option of going to court.

There are as many benefits to using mediation as there are reasons for using mediation. These include –

1. It is a voluntary process.
2. It offers speedy resolution of disputes.
3. It is considerably cheaper than litigation.
4. It can provide a win-win solution for both, or all, parties in a dispute.
5. The process is flexible, avoids technicalities and allows for direct party-participation, consensus, self-reflection.
6. It promotes reconciliation and fosters peaceable and healthier inter-personal interactions in the long term; thereby preserving of ongoing relationships (and/or promoting peaceful termination of relationships) and reducing, on a broader scale, the causes of conflict in the society.

• The parties, the mediator, and possibly the parties’ attorneys, attend the mediation. It is essential that the people who attend the mediation must have sufficient knowledge of the relevant issues in dispute and have the necessary authority, particularly where a person attending is representing an organisation or company, to settle the case.
• Other people who may be involved in the process include experts and, in certain circumstances, family members. The mediator may require others to attend.

• Mediation generally occurs at a neutral site, such as the mediator’s office or a mediation centre, so that the parties can be comfortable and be assured of neutrality.

• The Mediator’s role is to facilitate discussion and resolution of the issues. He must fairly and impartially assist the parties to identify and discuss matters in issue between them with the specific objective of resolving the dispute/s. He may discuss legal processes and options with the parties, may express opinions and make recommendations but may not impose any solutions on the parties nor provide legal advice.

No, a mediator does not judge the parties, the facts nor any legal issues. He does not tell them the solution to their dispute nor impose any solution upon them. It is for the parties to find a solution that meets their needs and interests. The mediator will help the parties to identify the real issues and explore different options for resolving those issues. If the parties reach agreement the mediator may assist them to draft a settlement agreement. Such a settlement agreement is enforceable in law as a contract and may also, if the parties agree to this, be made an order of court.

• Yes, mediation is conducted on a “without prejudice” basis and all written and oral communications, negotiations and statements made during the mediation will be treated as privileged settlement discussions and are absolutely confidential.

• Unless the commission of a crime is disclosed (or the intention to commit a crime) statements made during a mediation are regarded as statements made during the course of settlement negotiations and are regarded as having been made ‘without prejudice’. As such, disclosures made during mediation may not be used as evidence in Court – provided that the disclosures have been made in good faith and for the purposes of settlement.