Mediation is one of a myriad of alternate dispute resolution mechanisms available to Parties in dispute. The defining features of mediation include:
A VOLUNTARY PROCESS
Involvement in the mediation process is voluntary both in the initiation of the process, the continuation of the process, and in termination thereof. The voluntariness of the process is one of the critical features of mediation. Although South Africa is set to bring into operation court-mandated mediation in respect of certain matters, at this point there is no obligation on any party to take part in the mediation process. Additionally, upon commencement of the process, there is no obligation on any party to continue the process to the point of resolution and finality. The decision to terminate does not need to be by agreement but can be made unilaterally.
NEUTRALITY OF THE MEDIATOR
The neutrality of the mediator is a hallmark of the mediation process. The mediator to a dispute should not have any vested interest in the subject matter under discussion nor should the mediator have a vested interest in the outcome of the dispute. The mediator should ideally also not have established any prior relationship with any of the parties to the mediation and where a relationship has been established, transparency, and prior disclosure hereof to the other parties to ensure that the parties have no objection to the mediator’s continued involvement in the process.
All discussions held at the mediation are confidential. Settlement discussions and proposals put forward at mediation are protected by the “without prejudice” rule and may not be used against a party in subsequent litigation.
PARTIES’ DECISION-MAKING POWERS
The mediator does not hold any decision-making powers in respect of the adjudication of the dispute at hand. Additionally, the mediator does not assume the role of a legal representative or therapist for any of the parties to the mediation. The parties are at all times during the subsistence of the mediation process encouraged to seek individualized legal advice and counsel on rights in terms of the dispute and in respect of the proposals emanating out of the mediation process.