Mediation has become a buzzword in the realm of dispute resolution. While it has been utilized in family law disputes for some time, its recognition as a viable alternative to traditional dispute resolution in other areas of the law has only recently gained traction. This shift is largely due to the congestion caused by increased caseloads in the High Courts and the high costs associated with arbitration.
However, with the novelty of mediation also came hesitation. Many individuals are reluctant to embrace what they do not fully understand, resulting in underutilization of a process with numerous advantages. In this article, I aim to dispel five common misconceptions surrounding mediation.
1. Mediation is NOT a Form of Arbitration or Adjudication
Like with litigation, both arbitration and adjudication involve a decision made by a presiding official—a judge in litigation, and an agreed-upon figure in arbitration and adjudication. The misconception that mediation is a form of arbitration has been exacerbated by provisions in settlement agreements or parenting plans that grant “mediators” the power to make findings or issue directives. When a mediator takes on such a role, they are not practicing mediation but rather functioning as an arbitrator or adjudicator.
In mediation, the mediator serves as a uniquely skilled intermediary who facilitates the discussions between parties and assist them to reach a negotiated agreement. The mediator does not make any finding, nor does the mediator issue any directive.
2. Mediation is NOT an Expensive Process Compared to Litigation or Arbitration
Mediation is significantly less costly than arbitration or litigation. Several factors contribute to this:
Most mediations are resolved within half a day to a full day.
Mediators typically charge lower hourly or daily rates compared to arbitrators.
The preparation time for mediators is minimal, as they do not review evidence or legal arguments.
There is no need for recording facilities or expert witnesses.
In many cases, legal representation is unnecessary, which can further reduce costs. While having legal representation can be beneficial, especially in high-stakes disputes, it is not a requirement for mediation.
3. Mediation Agreements ARE binding
A common misconception is that outcomes of mediations lack binding authority. This is inaccurate; once parties reach a settlement agreement during mediation, it holds the same weight as any other contract.
4. Mediation is NOT the Same as Settlement Negotiations
Settlement negotiations, often referred to as roundtable discussions, typically involve legal representatives trying to find common ground for their clients. Despite their best efforts, such discussions are unfortunately often without success. This is no slight against legal representatives – it is simply that the nature of the role they are required to fulfil when representing clients are of a nature which is less ideal to facilitate a settlement,.
In contrast, trained mediators employ structured techniques that facilitate communication in a confidential setting, allowing them to interact with both parties in ways that legal representatives cannot.
Mediation creates a safe space for dialogue, enabling a more productive discussion than what is typically possible in traditional settlement negotiations.
5. It Will NOT Work Because the Parties Already Tried to Settle
Some parties hesitate to pursue mediation because they believe prior unsuccessful negotiations render it pointless. This misconception overlooks the unique characteristics of mediation. Many disputes are successfully mediated after unsuccessful self-negotiations. Despite previous failures, mediation often leads to successful outcomes precisely because it provides a different framework for discussion.
Conclusion
Mediation offers a practical, cost-effective alternative to traditional dispute resolution methods, fostering an environment where parties can reach agreement even after prior unsuccessful negotiation attempts. By clarifying these common misconceptions, we hope to encourage more individuals to embrace mediation as a powerful tool for resolving conflicts. With a qualified mediator, the process not only proves efficient but also paves the way for mutually beneficial solutions that save time and resources.
Article by Andries Stander
Stander Attorneys
DISCLAIMER
The information contained herein should not be used or relied upon as legal advice. No liability is accepted for any errors or omissions, nor for any loss or damages arising from reliance upon any information herein. Contact your legal representative or adviser for specific and detailed legal advice applicable to your factual matrix.
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