Someone once told me that ‘mediation is the next big thing’. They said that, very soon, far fewer people would be going to the courts to resolve their civil disputes. Most people involved in disputes will be mediating instead. I was so persuaded I went and trained as a mediator.
In 2010, around 87 000 civil claims in the UK courts settled before they went to trial. This means that 75% of cases took up an inordinate amount of preparation and actual court time, resulting in enormous administrative costs to the UK Treasury. In my view, the reason why comparatively few
mediations take place in South Africa is not down to any real problem with the process. It is more to do with an inadequate appreciation of the process
and what it can achieve. Most parties, who end up in litigation, have little understanding of mediation. Added to this is the probability that whilst all lawyers are trained litigators, most are not trained to be mediators. Mediation is a very useful tool for resolving disputes. When it is used, it is successful more often than not. There have been recent signs that more people are prepared to give mediation a go, and momentum seems to be building in some specialised sectors such as property and construction. But if mediation is to become a routine part of the civil dispute resolution process in South Africa, there perhaps needs to be a more concerted campaign to educate court users and highlight the real benefits of using it.
Mediation makes economic sense Knowledge and understanding will help. There needs to be an element of pressure put on parties to mediate if it is to become more widely used. This could mean the introduction of laws that make mediation mandatory. Parties can also be persuaded to think more about the economic sense of avoiding costly litigation and the genuine prospect of finding solutions to disputes that make commercial sense. The motivations for using mediation include quicker and cheaper dispute resolution. When mediation is embedded into a country’s civil justice system it results in fewer cases going to court unnecessarily. Disputes are resolved more rapidly at lower costs to participants. Underpinning a strategy aimed at channelling many more disputes towards mediation, should be a system that compels parties to use it. This could be done by introducing automatic referral of small claims to mediation schemes. Such schemes can be provided directly by the courts or sourced through industry bodies. The case for change is compelling. The emphasis should clearly be on getting disputes resolved, rather than on an idealistic pursuit of justice which can often see parties spend disproportionate time and money on litigation. In many instances, parties turn to the courts before even trying to resolve their differences in other less formal ways. Perhaps there will be resistance from some areas of the legal profession to making mediation the norm. In my view though, rather than perceive the push for mediation as a threat, legal professionals should look on it as a genuine opportunity. Parties who engage in mediation schemes will still need professionals to advise and represent them. Getting trained and qualified in mediation may also lead to a new area of interesting and challenging work for lawyers.
Taken from: Volume 6 Issue 3 – November – February 2020