Mediation, a better option than litigation

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Mediation is a process where a skilled and neutral third party (usually an attorney, psychologist or social worker) assists parties or families in conflict by facilitating and exploring options to settle their particular dispute. The mediator will manage the parties' negotiations and the parties are afforded an opportunity to arrive at their own mutually acceptable solutions.

Once a mediator is appointed the parties attend a number of sessions with the mediator. During these sessions each party will be given an opportunity to voice their concerns, make suggestions and explore options for resolving the dispute.

Emotions run high

Ashley Curran, who spearheaded Curran Mediation, says that mediation should always be a preferred option in a dispute as it can achieve remarkable results. "Often emotions run high in family law matters and the court system is not always an appropriate forum for ensuring the best interests of your family are protected."

According to Curran, mediation is preferable because:

• It is quicker than going to court as a dispute is usually resolved within a few weeks.
  
• Mediation is conducive to conciliation and problem solving.
  
• The environment is non-confrontational versus the hostile and antagonistic litigation environment.
  
• The focus is on the interests of the parties.
  
• It is inexpensive as a couple negotiates directly with one another rather than using attorneys to represent them on all issues.
  
• Participants enjoy a level of confidentiality which is not generally available through litigation.
  
• Mediation provides a greater degree of control as participants are a part of the decision making process.

A great upside is that mediation is significantly cheaper than going to court. "A mediator typically charges between R600 and R1,200 per hour and generally there are three to six sessions. Each session is approximately an hour-and-a-half to two hours long. Once the dispute is resolved and the parties have mutually agreed to the outcome, an attorney will simply walk the matter through court and have the Settlement Agreement made an Order of Court, where appropriate. When parties are embroiled in acrimonious legal battles the costs may run into hundreds and thousands of rands for both parties."

Objectivity of mediator

There are two ways to approach mediation - either it can be done before consulting with an attorney, possibly on the advice of a psychologist or marriage counsellor, or it can be opted for when one or both parties already have attorneys but have become despondent with the costs associated with litigation and the delays.

Curran says that she is sometimes asked about the objectivity of a mediator and whether or not they are likely to favour the party who called them in, but explains that mediation is voluntary so both parties must agree to refer a dispute to mediation and a mediator will not discuss the merits of the dispute with the party that makes initial contact, but that this will only be discussed in the presence of both parties.

According to Curran, mediation is a more suitable environment for family disputes, particularly when children are involved and ideally should be the first port of call. "An example of when mediation should first be considered is when a married couple decides they want to get divorced and they need assistance with the redistribution of their assets as well as custody/maintenance/care for minor children."

Business negotiation

When it comes to commercial matters, prevention is better than cure so when a dispute is brewing it is always a good idea to contact a mediator to assist and facilitate negotiations between companies, individuals, employers and employees. "Mediation is ultimately an aspect of business negotiation which assists in salvaging business relationships and identifying a practical solution," says Curran.

"The ultimate goal of mediation is to find workable, long-term solutions that are then recorded in a settlement agreement which is signed by both parties and made an Order of Court, where appropriate. Mediation avoids lengthy court proceedings and ultimately leads to an outcome that suits both parties - a win-win situation, rather than win-lose, as is the case with most legal battles," concludes Curran.