15 Feb 2021

Mediation: Taking the Road Less Travelled during a Pandemic

by Nerisha Besesar, Partner, Durban,
Practice Area(s): Litigation |

As we start our second year of uncertainty with the ongoing (and never-ending) pandemic, we find more of our relationships taking strain, be it amongst family members or within our businesses. In a commercial setting, what was once valued as a “gentleman’s agreement”, now carries a lot less weight as we ride the tumultuous economic waves, with each man and woman fighting for themselves.

But fighting may not always be the best solution for everyone, especially during a pandemic. And even if you make it through to the end of a bloodied fight, there is only one winner. This does not set a good foundation for the furtherance of your relationship especially if you have to continue to work together or co-exist in an ongoing business relationship with your opponent.

In order to comply with the lockdown restrictions, our courts have had to impose directives to limit the number of matters on the court rolls and when trials are permitted to be heard in open court, amongst others, due to infrastructural hurdles facing our local division. Litigants who have been patiently waiting for their day in court have had to stomach further postponements and with that, the associated legal costs. Despite these further delays and costs, and the relatively recent amendments to the Magistrate’s Courts Rules and the Uniform Rules of Court which compel litigants to consider of mediation as part of the litigation process, some parties are still electing to litigate. But mediation, should be, and must be, considered by parties and encouraged by their legal representatives more now than ever given our current situation.

So, what exactly is mediation? It is a voluntary alternative dispute resolution process whereby parties seek to resolve a dispute in good faith and without the formal involvement of the court. Parties must agree to participate in the process and can be required to do so in terms of a contract between them. Mediation can take place before court proceedings are instituted or after by agreement between the parties, and with the recommendation of the judge.

Because the nature of mediation is voluntary, it is important that both parties are willing participants, and it should not be regarded as tick-box exercise. A suitably qualified 3rd party, known as a mediator, is then mutually appointed. A venue is agreed upon with each side allocated their own room with the mediator acting as a go-between. The costs of the mediator and the venue are shared equally between the parties. How the mediation unfolds depends on the parties and the mediator’s preferences. Normally, the mediator will be presented with a set of documents and statements which are prepared by each legal team. The mediator then engages the parties in discussion and does his/her best to assist the parties in arriving at a mutually acceptable resolution of the dispute.  It is important to note that the mediator cannot and does not make a decision for the parties and the settlement of the dispute is entirely up to the parties. 

The process followed is flexible and if settlement is reached, it should be recorded in an agreement so as to provide certainty and finality. The settlement agreement can also be made an order of court if the parties so elect.

The main advantages of mediation are that the proceedings are private and confidential and held on a without prejudice basis. Parties then have their own private space and time to discuss aspects of the dispute with each other which they would not ordinarily have in a court room scenario. The other advantage is that the parties are in control of the process and then of the outcome. This is key as the parties’ attitudes towards each other and the dispute often changes as different emotions and facts are processed throughout the course of mediation. There is also a sense of openness to consider alternative routes to arrive at a settlement as opposed to waiting for a judgment from the court being imposed on them. Other advantages:

  • reduced time frames;
  • less risk;
  • cost effective; and
  • reduced stress levels.

If you decide that mediation is an option for you, you will need to prepare adequately with your legal team for this process in advance. You will need to be open with your legal team and be readily forthcoming with information and facts. It is also advisable to canvass with your legal team the possible outcomes and the parameters of settlement which you are willing to agree upon in advance.

Whilst some disputes are best suited for the rigors of court process and judicial oversight, especially when dealing with obstinate opponents, there are many disputes where a sense of commercial reality and practicality would better serve both parties’ interests, more so during the ongoing pandemic.

Negotiations inevitably involve compromise from both sides and the age-old saying is that no good settlement will leave either party entirely happy. The settlement arrived at during negotiations will provide a final resolution of the matter and within a much quicker time frame, allowing you to focus on other aspects of your business.