Mediation

                        IN DIFFICULTY, LIES OPPORTUNITY 

WHAT IS MEDIATION?

Mediation is a structured process which is aimed at resolving disputes. The relevant dispute may already  be pending in court or still to be filed. 

It is entirely voluntary  (except where explicitly mandated by the Court). Our mediation approach is process-centered, i.e. facilitative. Mediation creates the best possible environment for parties to reach a settlement. This is done by affording all parties involved in the dispute an equal opportunity (regardless of income, education or social standing etc.) to voice their views and feelings regarding the dispute and move towards a solution. These conversations are held “without prejudice” and are legally non-binding. If the mediation process fails, these disclosures may not be used in a court of law. 


THE FACILITATIVE MEDIATION PROCESS

Pre-mediation

 

The structured mediation process consists of several phases:

  1. An introduction to the mediation process, i.e. a joint session where the general mediation process is carefully explained to both parties. The mediator will give an opening statement which will include pertinent information for the parties. This includes administrative matters such as signing the Agreement to Mediate if not done yet, the confidentiality of the proceedings; and the review of any agreements, by counsel. It is important that the parties that attend the mediation process, have the necessary Settlement Authority  (the parties present have the authority to reach a settlement agreement as part of the successful outcome of mediation). 
  2. Following the introduction by the mediator, opening statements are made by each party. During this stage, each party gives an account of the facts and circumstances which lead to the dispute. Issues are identified and summarized. 
  3. Several private and confidential sessions are then held with each party and the mediator. separately. During these breakaway sessions, specific issues and concerns as well as the underlying and often unexpressed interests of the parties, are explored in greater depth.
  4. Once the parties’ interests have been explored and identified, the mediator as bridge-builder, assists the parties to explore possible solutions and options (areas of settlement). A realistic assessment of the strengths and weaknesses of each party's position is the goal of this stage and as such, reality checking and reframing are important aspects.
  5. Negotiations and decision making by the parties continue unless the mediator declares an impasse and ends the mediation or continues the mediation in a subsequent session/s.
  6. The final stage is that of Clarification and Agreement Writing. The terms of any settlement are negotiated by the parties. If legal counsel is not present, the parties may elect to have the document reviewed by counsel and signed at a later date.


BENEFITS OF THE MEDIATION PROCESS

There are several benefits to choosing mediation over litigation. 

Contrary to the litigation process, mediation offers a non-threatening and confidential space, where an impartial mediator assists sparring parties to find solutions and reach a workable settlement by means of constructive dialogue. 

The cost (in time and money) of mediation is considerably less than the average cost for litigation. Parties are also able to schedule mediation meetings within weeks of either a court order to mediate or an agreement to mediate. 

Self-determination is also key; the parties are empowered to solve their problems. This active participation in the resolution of the dispute, may repair and preserve the interpersonal relationships between the parties. In the case where a party feels extremely aggrieved, the healing process is the outcome as a result of mediation.  

Confidentiality of the process is a further important benefit. Whatever is said in the mediation cannot be repeated or reported by the mediator or anyone who is part of the mediation process to another party. 

 

THE GOLDEN RULE OF MEDIATION - CONFIDENTIALITY

All participants (including the mediator) are bound by the Mediation Agreement to observe the confidentiality of what is said during both joint and private sessions. This also extends to divulging confidential information shared with the mediator during private breakaway sessions; which may only be shared ad verbatim with the other party once a clear mandate has been given to the mediator to do so. 

Without confidentiality, successful mediation is not possible. Confidentiality is regarded as the golden rule of mediation as it serves to facilitate trust in both the mediator as the driver of the structured process as well as the process in its entirety. 

None of the information disclosed during the mediation process, should the parties fail to settle their dispute, may be used as evidence during legal proceedings. 

 

THE ROLE OF THE MEDIATOR

The mediator is a skilled facilitator, who is in charge of the mediation process and who assists the parties to resolve their dispute. By creating the environment for the parties to determine their own solutions, the process is strongly focused on “self-determination”. 

The mediator acts as an impartial facilitator and has no settlement authority. S/he is therefore not in a position of power to advise, direct the conversation or render a resolution. Instead, the mediator is adept at listening without prejudice, and preventing the escalation of emotions or violations of dignity (disrespect) from derailing the process. Other skills include the ability to empathise, attend to non-verbal communication, manage diversity issues, as well as uncover any hidden psychological interests, all of which may assist to achieving a positive outcome.

 

MEDIATOR ETHICS AND CODE OF PROFESSIONAL CONDUCT

Dr McCallum is an accredited commercial and medical negligence mediator with Mediation in Motion (UCT@Law). Mediation in Motion, is accredited by the South African Dispute Settlement Accreditation Council (DiSAC) as a Service Provider. 
DiSAC provides an accountability framework to support ethical and professional practice by mediators and arbitrators. More information about DiSAC and the code of professional conduct is available at http://disac.co.za/

 

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