Mediate before you litigate

Recently, the Department of Justice published a set of mediation rules, which looks to be implemented in the High Courts of South Africa by August 2013. So what does this mean? The rules introduce a court-based mediation process whereby parties to a civil dispute will have the option to refer the dispute to mediation. If the other party refuses to participate in the mediation process and such refusal is found to be unreasonable by the court at the trial, that party faces the possibility of a hefty costs order.

Mediation has become increasingly popular as an alternative means of resolving both family and commercial disputes. Litigating in a court of law is a lengthy process that has out-priced itself and is unaffordable for the majority of South Africans.

So what is mediation?

Mediation is typically defined as a process in which parties are assisted by a neutral third party to explore possibilities of resolving issues between themselves by mutual agreement without adjudication. To name a few of the advantages of mediation:

• Parties arrive at their own agreements, without a third person telling them what to do;
  
• The process encourages problem solving;
  
• Cost-effective
  
• Confidential;
  
• Matters resolved relatively quickly; and
  
• Future business relationships and/or family relationships are salvaged as the process is amicable and tends to decrease hostility and reduce conflict.

The mediation process is voluntary and requires co-operation from both sides; however, as the backlogs at court continue and the legal costs escalate, mediation will no doubt become an appealing method of resolving conflicts.