+27 21 461 6240 - [email protected] - 34 Plein Street, Cape Town

Mediation

MediationAlternative Dispute Resolution: Mediation

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.

Mediation services in both commercial and family law contexts

Senior Associate, Kate Elliott, has recently expanded her practice and is now an accredited mediator and is on the Mediation in Motion (MiM) panel of mediators.

Ashersons Attorneys is therefore able to offer mediation services, as a mediator, in both commercial and family law contexts.

Recent articles

Has your lawyer informed you about Mediation? - Legal Practitioners have recently been turned away from the High Courts when requesting their Summonses and Applications to be issued by the Registrar, not because of the COVID-19 epidemic, but because their papers did not contain a newly introduced annexure, referred to as Form 27. Form 27 and its associating Rule, Uniform Rule 41A, were […]
Redflag provisions in the South African Arbitration Act may hinder swift and efficient arbitrations - In recent years there has been increased reliance on use of arbitration to resolve commercial disputes. The hallmark of arbitration is that it enables the parties to a dispute to determine the manner in which the parties will attempt to resolve the dispute, including the rules and duration. In South Africa arbitration is particularly attractive […]