Access to justice in South Africa is set to improve dramatically in future, when a new High Court rule makes mediation compulsory for civil court cases. The implications for business are extremely positive, because mediation is a much more affordable and quicker process than going to court.
What is mediation?
Mediation is a process in which a mediator assists the parties in a dispute to carve out their own settlement, with the aid of their lawyers if they choose, instead of going to court.
How can I solve disputes myself?
Every company should incorporate mechanisms for dealing with conflict into all their business agreements, including employment and service contracts. For example, every contract should have a clause stipulating that the parties will attempt to solve disputes through negotiation first. If the parties cannot reach a settlement through negotiation, the dispute should be referred to a mediation service provider.
This way, discussions can begin before a dispute escalates, which could have a devastating effect on the productivity of employees.
You will be able to negotiate your way through many conflicts yourself if you and the other party do the following:
- Commit to listening to each other’s arguments in full, and putting yourself in the other person’s shoes.
- Agree to set your emotions aside and focus on the practical implications that the problem is having on the business. Things go pear-shaped when people act only out of emotion.
- If the two parties cannot find their own solution, your in-house mediator or a service provider should be engaged.
- Once you have found a solution, review the issue fortnightly, and at a later stage monthly.
When should I seek help from a mediation company?
If the other party fobs you off, or you cannot find a solution within the company, you should to contact a mediation service provider.
Make sure your business have mediation clauses in all contracts. If you don’t, the other party might refuse mediation and you might have to go to court.
Who do I approach?
There are very few mediation service providers inSouth Africa. Equillore has mediated 45 000 cases, more than any other company in the country, with over 70% of these mediated successfully. Equillore provides their services across the country.
The CapeChamber of Commercehas set up a dispute settlement centre, powered by Equillore, to boost mediation and other dispute settlement processes among its member businesses and business in general. It is called the African Commercial Dispute Settlement Centre. Log on to www.equillore.com or www.capetownchamber.com to find out more.
How do I prepare?
It will help to prepare a statement of case, to ensure that the mediator is prepared and that no time is wasted at the meeting. This statement could include documents, contracts or court pleadings.
The mediator will need to know how the dispute arose, who all the relevant parties are, the key factual and legal issues, the important points of agreement and disagreement, and whether the parties have held any direct negotiations, among other questions.
It would also be helpful to inform the mediator of the settlement you would like to reach.
How does it work?
The mediator is a neutral party who is committed to helping the parties to settle, but has no stake in the outcome. Costs and timeframes are fixed, unlike in court. Equillore favours a two-hour mediation sessions, as this is more efficient in cost and time effective than the full-day sessions – and four in five cases are settled within the first two hours.
The two-hour session will cost you less than R 4 000.00.
You will be able to choose your mediator and decide on the issues to address. Mediators are specialists in certain aspects of law, or certain professions. The mediator will apply their expertise in assisting the parties to reach early settlement.
You will also decide when the sessions will take place and how to apportion the fees.
Once a settlement has been reached, the mediator will draft a settlement agreement that will be signed by both parties and can be enforced. Settlement agreements can even be made an order of court.
What are the benefits?
The process, and costs involved, are defined from the start and are predictable, unlike legal cases which can be prolonged almost indefinitely.
Mediation helps the parties to understand each other’s position and the real cause of conflict, which are often hidden at first.
It usually results in a more sustainable solution, leaving both parties feeling better, than where a solution is imposed upon them. Your business is far less likely to be bankrupted than in litigation, and both parties are more likely to honour such a mediated agreement.
The mediator helps you find solutions that are satisfactory to both parties, and often the relationship between parties is restored and can be strengthened.
Mediation is confidential. So, you can express your views and feelings without causing any bad publicity. This helps you to be open and honest, and the other party is likely to follow suit. Also, what you say cannot be used against you if the matter proceeds to court. Your reputation remains intact!