In the case
of a legal dispute where the parties involved do not want to go to court,
mediation offers an out-of-court alternative. On the other hand, litigation
involves two parties enforcing or defending their legal rights through court.
Mediation is done with the assistance of a mediator.
Who is a mediator?
is someone chosen by the parties and is sometimes a lawyer. However, the
mediator doesn’t have to be a lawyer and can also be experts from other
professions. The background of the chosen mediator will most likely depend on
the type of dispute. In a dispute concerning the construction of a building, an
engineer could be chosen to act as a mediator because of their specialised
knowledge of construction sites.
mediators are chosen from a panel of accredited mediators appointed by the
Minister of Justice and Correctional Services. They would have also had
mediation training, meaning they’re not random professional people from the
public. The mediation clerk will help the parties decide which mediator is best
for their particular dispute. As mentioned, the type of dispute will play a
major role in the type of mediator appointed or suggested.
The job of
the mediator is to facilitate discussions between the parties who have a
dispute. Among other things the mediator assists them in identifying and
What’s the point of mediation?
The point of
mediation is to settle disputes peacefully. It has few technicalities and
promotes reconciliation between two opposing parties who may have had a
misunderstanding or simply a bad experience. Litigation is more time-consuming
and usually leaves someone at a disadvantage. Litigation is often sort out in
hospital disputes in circumstances where a patient feels they’ve been neglected
or mistreated by a doctor. Instead, mediation can offer both the parties a
beneficial outcome and help avoid an ugly court case. An unhappy patient may
approach the hospital where they were treated and come to an agreement where
the hospital can help the patient find better treatment or assist them in one
of their immediate needs. The patient would then not sue the hospital, meaning
the hospital wouldn’t lose money or their reputation.
What are the advantages of mediation?
mediation process has several advantages. The most obvious one is that the
parties involved in a dispute don’t have to go to court and can settle the
issues much more efficiently and inexpensively. However, some people may decide
to ignore mediation for litigation, which is far more expensive and prolonged.
Mediation offers the added benefit of providing a “win-win” situation for both
parties through negotiation and compromise.
So who is right and who is wrong?
does not declare who is right and who is wrong in a dispute nor do they give
the parties a final solution by judging them. It is the responsibility of the
opposing parties to find their own solution with the help of the mediator.
will draw from his/her professional experience in the particular matter and use
that to advise the parties involved in a dispute. That’s why a mediator is
chosen with experience in the field over which the parties are fighting about.
If the parties have come to an agreement the mediator will help draft a
settlement agreement, which is enforceable in law as a contract.
Department of Justice and Constitutional Development, Civil Law. [online]
Available at: http://www.justice.gov.za/mediation/mediation/ [Accessed 18/05/2016].
This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)