What is mediation?

Mediation is a voluntary, assisted negotiation process which utilises a trained mediator as an independent third party to create a safe and controlled space for parties to resolve a dispute or difficult matter.

The meditator uses their skills to guide the parties through a dispute, with a focus on the underlying issues and relationships, rather than just the parties’ legal rights and obligations. Mediation results in creative solutions to seemingly unsolvable problems, and provides resolution options not always available during litigation.

Mediation is recognised as an excellent option for resolving disputes and is a growing industry in  Africa. Globally, mediation is becoming mandatory in many legal systems due to its exceptional success rate – South Africa included. In the 2016 UK CEDR Audit, an estimated 10 000 mediations were performed in England and Wales during that year, with a settlement rate of 86%.

How does the process work?

Prior to the mediation, the mediator will make contact with all parties to explain the process and answer any questions. During the mediation, a formal yet flexible process is followed. Typically, all parties meet in a joint session and are given an opportunity to tell their side of the story. The mediator then has private, confidential sessions with each party, where interests and concerns are explored, and possible outcomes laid out. The mediator then works with the parties to address the issues raised in an effort to find a solution that satisfies everyone. Once a solution is reached, AMI Attorneys will assist the parties in drawing up a settlement agreement.

The whole mediation process is strictly confidential and off the record. The mediator is neutral and does not represent either party in any capacity. Both parties must consent to mediation, and the parties themselves are ultimately in control of the decision to settle and the terms of the resolution.

Is my matter suitable for mediation?

Mediation has substantial success in settling disputes in the commercial sphere, in employment relationships, in families and in communities. No matter is too small or too large for mediation. It is useful for disagreements over intellectual property between developers and tech companies, contractual obligations in the entertainment industry and to amicably determine terms for business divorce.

Mediation is tough, (but still possible) when parties are totally unwilling to budge, if the matter is criminal, if one party seeks to clarify the law or requires a binding precedent, if a party wants to publicise the dispute, or if either party is severely intimidated.

At what point in the dispute can I mediate?

Pre-lawsuit mediation is widely accepted as a sensible way of resolving disputes before they turn into litigation. However, parties can mediate at any point in a dispute – from the initial disagreement, to when communications have broken down, or even when litigation proceedings have begun and become protracted.

Parties to a mediation do not give up their rights to resort to or continue a litigation process. Additionally, no offer, concession or information disclosed during the mediation can be used as evidence in any subsequent legal proceedings.

Will I get legal advice?

While some of our mediators are attorneys, our mediators will not give legal advice during the mediation. Their role is not to make decisions or come to conclusions about the merits of either party’s argument or position. However, if the dispute is complex, parties are encouraged to have access to independent legal advice on the day of mediation, either through direct representation, or through the telephone, should it be required to clarify an issue or assist with a decision. When the parties come to an agreement, the parties will determine the terms of the agreement themselves, which will be drawn up by AMI’ legal team, according to the parties’ instruction. Neither party will be bound to any decision made during mediation until the terms are in writing and signed by both parties.

What’s the difference between mediation, arbitration and litigation?

In mediation, the parties are responsible for and control the dispute. No decision-making power is given to the mediator. The outcome is determined by the parties themselves. Mediation is private, and a more informal procedure than arbitration. It happens within a predetermined time-frame and results in a contract between parties.

In arbitration, the outcome of the matter is decided according to objective standards – it only considers the law and past conduct, rather than the interests of the parties or the future of the relationship. Arbitration is based on rights, rather than possible outcomes. The parties have to persuade the arbitrator of its point of view, rather than work with the opposing party to understand both sides of the story. Arbitration results in a private agreement between parties, which can be formalised via court order.

Litigation uses state courts or tribunals to resolve a dispute publicly according to highly formalised rules, processes and laws applicable. It is decided by a judge or magistrate, and usually results in one party winning, and one party losing. It doesn’t accommodate for views to be expressed that don’t fit into the black letter of the law. It’s expensive because it takes a long time (sometimes years) to prepare for and undergo – time you have to pay a lawyer for.

How do I know my mediator is neutral?

The mediator acts as a facilitator in mediation – not a judge, advisor, or agent for either party. Our mediators have been highly trained to remain unbiased and control the mediation process. The parties themselves determine the content and the outcome of the dispute. The mediator assists the parties in working towards a negotiated agreement. If there is any possibility of a conflict of interest, our mediators will hand the matter over to a highly qualified colleague.

AMI Mediation is independent from any other operations within AMI. Whatever happens in the mediation, stays in the mediation.

Do I have to be in the same room as the other party?

Mediation is a flexible process which can be tailored to meet the unique aspects of each matter, and there may be circumstances when it is not desirable for parties to be in the same room together. However typically joint sessions, when properly managed, provide value and enhance the likelihood of a satisfactory resolution.

Who pays?

Traditionally, both parties contribute equally to the mediation. However, in your mediation agreement, you can determine who will pay for the session.