Mediation is an alternate dispute resolution mechanism available to Parties in dispute. The defining features of Mediation include the following:
IT IS A VOLUNTARY PROCESS
Participation in Mediation is voluntary. Remaining in the Mediation process is voluntary. Agreeing to the terms of a settlement reached at Mediation is voluntary. Despite South Africa having provisions for court-mandated Mediation there is still no obligation on any Party to take part in the Mediation process should they rather that a Court adjudicate their matter for them. The decision to remain in Mediation as well as the decision to terminate a Mediation does not need to be by agreement, it can be made unilaterally by a Party.
THE MEDIATOR IS REQUIRED TO BE NEUTRAL AND BALANCED
The neutrality of the Mediator is one of the hallmarks of Mediation. The Mediator to a dispute should never have any vested interest in the subject matter under discussion, nor should the Mediator ever have a vested interest in the outcome of the matter. In other words, Parties either settle their matter or they don’t settle their matter dispute, the Mediator should never place any Party under pressure to settle. The Mediator should ideally also not have established any prior relationship with any of the parties to the Mediation. Where the Mediator has had a prior relationship with one or more of the Parties, the Mediator is required to bring this to all the Parties’ attention before the Mediation starts. The Parties must then be given a chance to apply their mind to this and to decide whether they have any objection to the Mediator’s continued involvement in their process.
MEDIATION IS CONFIDENTIAL
All discussions held at Mediation are confidential. Excepting a number of defined circumstances, Mediators may not disclose the discussions held at Mediation. The exception to this rule is where there is a threat to harm a child or the other Party. In cases such as these, the Mediation will immediately be stopped. Settlement discussions and proposals put forward at mediation are always protected by the “without prejudice” rule. Mediation discussions and proposals only become binding on the Parties when they are signed. Discussions held at mediation may not be used against a Party in subsequent litigation.
THE PARTIES’ HOLD ALL THE DECISION-MAKING POWERS
The Mediator does not possess any power to compel the Parties to settle their matter. Additionally, the Mediator does not act as a Judge and decide on the matter. Further, the Mediator does not evaluate the conduct of the Parties and determine who is right and who is wrong. The Mediator may not act as the Parties’ Attorney or Therapist. Although the Mediator may be an Attorney, they must remain neutral and balanced and they will be required to remind the Parties of the advantage of seeking independent legal advice on their matter and on the proposals that come out of mediation discussions.