MediationMediation – 

Although not always well understood in South Africa, mediation is a powerful dispute resolution strategy.

Stripped down mediation may be defined as negotiations facilitated by a neutral third party, called the mediator, who helps the parties rediscover what triggered their dispute. It should always be considered as one of the options in any dispute, and mediation attorneys should be consulted.

A simplified case study helps illustrate the philosophy and benefits of mediation.

Two cheese farms had a dispute over the fact that they had both produced a variation of Boerenkaas cheese and had both labelled their cheese “Lucille’s Gold”. The parties’ version of events differed from one another and as is common in litigation where there is a dispute of fact there would be considerable delays in any litigation process. This was not ideal as Boerenkaas cheese has a limited shelf life of 6 months and could not be sold until the dispute was resolved.

The parties had already spent a considerable amount of money on legal fees in instituting and defending the litigation respectively. They realised that litigation had become a “lose-lose” method of resolving the dispute, and decided that they had nothing to lose by agreeing to the assistance of a mediator. The parties didn’t have any hope of reaching a settlement at all, as they were pitted against each other in the litigation process and were further from reaching a settlement now than they were when litigation began.

At the first meeting, the mediator asked each party where and how each party intended to market and sell their cheese. The first party answered that he had produced only a limited number of wheels of Lucille’s Gold in order to honour his daughter and only intended on giving out samples as a promotion at his farm and selling the rest of the wheels from the farm’s on site shop, while the other party said he wished to market and sell Lucille’s Gold extensively overseas. The parties were thus able to settle the dispute, as the name conflict in reality would not cause any confusion and each party was able to move on without incurring any further costs.

Skilled mediators, like the one in this story, assist parties to settle disputes by helping parties to think “out of the box” and explore options that may have not otherwise been apparent to the parties. By doing this they turn “lose-lose” situations into “win-win” scenarios.

The benefits of mediation include greater creativity in crafting a solution, speed of action, lower costs, and appropriateness in contexts where there is going to be an ongoing relationship between parties (such as in family law matters or between shareholders or partners).

Each case should be considered on its own merits, and sometimes a combination of strategies can also be appropriate.

Ashersons Attorneys offers mediation services in both commercial and family law contexts.