Court should be the last resort in a dispute, and if a draft rule, issued by the Rules Board for Courts of Law, is approved, it will require parties to consider mediation before taking matters any further.
This will save costs, reduce the burden on the court system and, where there is a probable ongoing relationship, hopefully salvage what is left of it.
Mediation has long been recognised as an effective alternative dispute resolution (ADR) method, whereby parties appoint a neutral, qualified third party to facilitate a settlement.
If the rule is approved, South Africa could soon follow international trends. Known as Rule 41A, it will require a practising attorney to declare before court that they had advised their clients to consider mediation as an option to resolve the dispute.
If they don’t, they could be penalised with costs orders.
PJ Veldhuizen, the managing director of Gillan and Veldhuizen Incorporated, is a practising commercial mediator and sits on the Companies Tribunal of SA. He said the proposed rule will bring about much-needed relief to the court system and legal process, “not to mention the costs of legal representation”.
Veldhuizen says the rule, which was open for comment until the end of February, is yet to be passed, but even if it isn’t, mediation should be the first course of choice. “Rule 41 applies to any high court matter,” Veldhuizen says.
“It requires that mediation be considered at each stage.”
Mediation’s a more realistic approach to a matter, allowing for an independent professional to “reality-test” a dispute. And it works for a variety of matters - from Road Accident Fund claims to divorce and construction disputes.
In some cases it’s not an option, he says. “Some matters need to go to court to be tested, as they set precedents and create legal certainty.”
For Michelle Dommisse, an attorney and accredited Family Mediators’ Association of the Cape mediator, mediation is well suited to divorces.
She says the court process is acrimonious, with a clear winner and loser. When it comes to divorces, where children are involved, matters are not as straightforward.
“Mediation is an excellent tool for parties who are going to have to have an ongoing relationship,” she says. It works particularly well for labour disputes and family disputes.
“In every conflict, there’s his version, her version, and the truth is somewhere in the middle. The opposite of love is not hate but indifference.”
She says there’s no real interest for divorce attorneys to settle cases, which means families pay more because attorneys can’t find common ground.
“As a mediator, I hold the space so the two parties in conflict can find each other. It’s much more constructive. We mediate on the consent paper (all the settlement agreements, finances and the children too) and the parenting plan (practical arrangements for children).
“I give each couple a statement of account and say you can get divorced for R30000 - that includes four mediation sessions and all the legalities. Once you’ve agreed on the parenting plan and consent paper, that takes four weeks for an unopposed divorce. It’s simple but difficult - you have to reach an agreement. Often there’s a power imbalance so people aren’t able to negotiate. Mediation levels the playing field.”
Mediation and arbitration are often used interchangeably, but they differ vastly. Mediation is a process whereby a neutral third party helps parties work through conflict and find an appropriate solution. It might take one or several sessions, which should, ideally, be spread over a few days.
“It is advisable to keep each session to an hour-and-a-half, as the sessions require complete focus and concentration from both parties,” Dommisse says.
Depending on the nature of the dispute, the complexity and the willingness of parties to come to the table, it’s relatively expeditious. But it can also be emotional.
Arbitration, on the other hand, isn’t a cheaper option. It’s more aligned to a judicial determination and usually has the same effect as a legal hearing.
Dommisse says, often in divorces, parties get stuck in their negotiations, so they opt for mediation first, then arbitration. “But arbitration is less empowering than mediation because an external person is involved in the process.”
Call on a professional
Attorneys should be advising their clients to consider mediation as a possible resolution, but Veldhuizen emphasises that, before parties go the ADR route, they must ensure their mediator is qualified, experienced and reputable. And short courses for lay people don’t equip them adequately to be mediators.
“The quality of your mediator is critical,” he says.