To mediate or not to mediate, that is the question

In terms of the amendment made to the Magistrates Courts Rules in March 2014, scope now exists for the use and application of mediation as a dispute resolution mechanism during the litigation process.

Generally speaking, invoking negotiation and / or mediation is most ideal before litigation is instigated. This mainly from a cost perspective. However, in many instances I am of the view that mediation may still be very valuable in order to settle part or all of the disputes between the parties during the litigious process.

Mediation as a process is very different from other alternative dispute resolution mechanisms and the litigious process. It is defined as:

 “[T]he process by which a mediator assists the parties in actual or potential litigation to resolve the dispute between them by facilitating discussions between the parties, assisting them in identifying issues, clarifying priorities, exploring areas of compromise and generating options in an attempt to resolve the dispute.”

In many disputes, there is definitely room for the application of the mediation process. In addition, the relationships concerned may be so important to preserve that mediation is a valuable tool in facilitating same. As such and in my view, legal practitioners have an important role to play in making this process serve the best interests of their clients.

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