HOW DOES IT WORK?
FREQUENTLY ASKED QUESTIONS
What is mediation?
- 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.
Is mediation something new?
- 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.
What kinds of disputes are appropriate for 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.
How does it work?
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:
- 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.
- 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.
- 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.
- 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.
Why should I use mediation?
People choose mediation for many reasons, including that –
- 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
- 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
- Mediation can save time and money
- 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.
What are the benefits of mediation?
There are as many benefits to using mediation as there are reasons for using mediation. These include –
- It is a voluntary process.
- It offers speedy resolution of disputes.
- It is considerably cheaper than litigation.
- It can provide a win-win solution for both, or all, parties in a dispute.
- The process is flexible, avoids technicalities and allows for direct party-participation, consensus, self-reflection.
- 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.
Who attends a mediation?
- 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.
Where does Mediation take place?
- 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.
What is the Mediator’s role?
- 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.
Will the mediator tell the parties who is right and who is wrong?
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.
Is mediation confidential?
- 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.
May statements made ever be used in court?
- 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.
What if I start mediation but don’t want to continue?
- That is fine as mediation is entirely voluntary. The mediator does need to know unequivocally, however, that you ‘want out’. He may try to persuade you to continue with the mediation but he cannot compel you to do so. Experience shows, however, if you walk away when things are tough, they are not going to get any easier and will probably stay difficult.
What happens if we reach agreement at mediation?
- There is no requirement that any settlement agreement be put it in writing however it is often desirable to do so. The reason for this is that it reduces misunderstandings. It also makes it easier, should the parties agree to this, for the settlement to be made an order of court.
Can mediation be used where litigation has already commenced?
- Yes, matters can be referred for mediation at any stage during the court process before a judgement has been given.
How long does the process of mediation take place?
- Simple disputes can often be resolved quickly, possibly within a few hours or days. More complex disputes may require a number of sessions over a few weeks to reach an acceptable compromise, to work out all the details and craft a resolution that works for you.
- Factors which may affect the time taken to resolve a matter include –
- The number and complexity of issues
- The number of parties
- How much you disagree
- How open the parties are to try to work things out
- The parties’ emotions
- How well the parties can communicate.
How much will it cost?
- There is no charge for the initial consultation but thereafter the cost will depend upon many factors particularly, the time taken and the fee rate agreed with the mediator. What it will be, though, is substantially cheaper that going to court with litigation and paying lawyers and related fees.
- The fee rate agreed applies to time involved in preparing for a mediation, time during the mediation session(s) and time spent following a successful mediation. This time may include preparing a mediation agreement, the actual mediation sessions, face-to-face meetings with you or any other necessary person, communications via telephone, email or other written correspondence and the creation of a written settlement agreement for the parties to sign.
Who pays the mediation fees?
The fees are generally shared equally between the parties but other arrangements can be made, by agreement, between the parties and incorporated into the agreement.
Are there charges for travelling time if the mediator has to come to us?
- Providing you are within an hour’s drive from Cape Town (and subject to a minimum 4 hour mediation) there are no charges for travelling time.
When are the fees payable?
The fees are payable upfront or on the first day of the mediation.
What happens if we cancel the mediation or any session?
If you want to cancel a mediation session you must notify the mediator at least 5 business days before the date of the mediation in order to avoid any charge for that mediation session. If you give us less than 5 business days notice of any cancellation then there will, in addition to any charges towards the actual preparation time for the mediation, be a 1 hour charge towards the scheduled mediation session.
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Address: 3 Tiverton Road, Plumstead, Cape Town, South Africa
Phone: +27 (0)21 761 6448