Abraham Lincoln once stated: ‘Discourage Litigation. Persuade your neighbours to compromise whenever they can. Point out to them how the nominal winner is often the real loser in fees, expenses, and waste of time. As a peacemaker, the lawyer has a superior opportunity of being a good man. There will still be business enough.’
Mediation as per its legal definition as defined in Rule 73 of the Magistrates Court Rules, is stated to be: ‘The process by which a mediator assists the parties in actual or potential litigation to resolve the dispute between them by facilitating discussions between the parties, assisting them in identifying issues, clarifying priorities, exploring areas of compromises and generating options in an attempt to resolve the dispute. ‘
History has dictated that mediation has the potential to resolve the most modest to the most complex disputes with the undertone of reconciliation being ever present. Thus it cannot be said in the strictest sense that mediation is relatively new, albeit it has only been incorporated as part of the Magistrates Court Rules as of 1 December 2014. The mechanism that is mediation has been employed historically during the Apartheid era, as well as being applied to resolve social issues being faced by our communities, such as the mediation which occurred between the South African National Police Force and People Against Gangsterism and Drugs (PAGAD) to name but a few.
As of late, we have moreover been able to note the importance of Mediation, if cognisance is taken of the issues that have sprouted from the dismay of students attending our local universities, and the various movements which have culminated therefrom, such as “Rhodes must fall”, “Fees must fall”, and “Afrikaans must fall” which made it clear that mediation, if employed correctly can be a revolutionary tool, with a firm place in modern society. As the core of mediation is to facilitate meaningful dialogue, and engagement, it can be said that it is common cause that where a party actually has the opportunity to voice their opinion and deliver their input, that makes that participant that much more susceptible to engaging in constructive engagement, as the participants then feel that they are on equal footing. Further, as all things stated within a mediation session are confidential, parties do not feel as controlled and restricted by their legal practitioner as they would had they been in open court as the participants in mediation, do not speak on the direction of their legal practitioner but of their own accord.
Our Criminal Courts have been able to reap the benefits of mediation, as the same is engaged in when our local Prosecutors are faced with smaller matters which make their way onto the criminal court roll, and upon further inspection by referring these matters to mediation, the parties have been able to themselves seek resolutions, negating possible prison time and promoting restorative justice.
Mediation offers a positive alternative to the traditional route of litigation for the following reasons:
- It can expedite the resolution of disputes;
- Due to its potentially speedy nature, it can save you considerably more in expenses, in contrast to what you would have spent if the route of litigation had been engaged in;
- In mediation, there is no outright winner, as parties themselves have agreed upon a resolution to the dispute, and therefore they have taken control of the matter, whereby they have empowered themselves as no judicial decision was necessary;
- The process is simple in nature, as it diverts from the usage of legal jargon, therefore all parties can feel comfortable speaking their own dialect, and avoids the sometimes unnecessarily complicated results that legal jargon brings to the table;
- The parties have had the opportunity to meet eye to eye, and not be placed on two mutually exclusive sides of the stick, thus being able to voice and table their different interests, and come together to find a holistic resolve;
- The most important aspect of mediation in my opinion is that it provides the parties with the opportunity, to mend a strained relationship whatsoever, and not after reaching a resolve part as adversaries, and this then promotes cohesion of our societal bonds.
It is now the apt time for the legal sphere to fully expose the true perspective of mediation especially given the framework and background of South Africa, as we are still deeply rooted in inequities and inequalities. What adds to the potential of mediation within the South African context, is when one looks at the backdrop against which mediation will be employed i.e our shrinking economy which has resulted in an increasing number of South Africans feeling the pinch; and the current level of education, mediation will make the law more accessible.
Having stated the above, one cannot fully dismiss the entire litigation process but rather see the same as the last resort. In certain instances litigation would however be the appropriate avenue to be followed, for example in matters involving serious crimes, liquidations, change in an individual’s status or in matters where mediation has been exhausted without reaching any outcome. Therefore it can be stated that the adversarial nature of litigation and the reconciliatory nature of mediation form an integral part of our legal system.
In closing, it can be stated that Mediation, is not a concept that is foreign to South Africans, as within our societies we have had a plethora of mediation in one form or the other, but now we are called upon to embrace it, and advance it for the betterment of our society and in doing so remain ever mindful of the words of Nelson Mandela: ‘If you are negotiating you must do so in a spirit of reconciliation, not from the point of view of issuing ultimatums. In the end, reconciliation is a spiritual process, which requires more than just a legal framework. It has to happen in the hearts and minds of people.
Should you require any assistance, please do not hesitate to contact us.