Category Archives: Mediation

The Mediation Process

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Step-by-step guide to mediation in the magistrate’s court

By Caitlin Askew

The magistrates’ courts are currently over-flowing with cases. Various disputes are brought before the courts on a daily basis. Attempts to get a trial date or a date on the roll can leave you waiting months before your matter is heard. In light of the above, the legislature has looked into ways in which we can reduce the amount of cases that go to trial, in essence, alternative dispute resolution. In December 2014, ch 2 of the magistrates’ courts rules came into operation providing an alternative to formal litigation, namely voluntary mediation in selected magistrates’ courts.

Mediation is the process whereby a third party, namely a mediator, assists the parties in identifying issues, clarifying priorities, exploring areas of compromise and generating options in an attempt to resolve the dispute. This mediation process applies to parties in both actual and potential litigation. The main objectives of this mediation process is to facilitate discussions between the parties and to preserve the relationships between the parties that may become strained or destroyed through the adversarial nature of litigation.

A step-by-step practice note guideline follows:

Step 1: When to refer a matter to mediation

A matter can be referred to mediation before or after litigation but must be done before judgment is handed down. If the trial has commenced the parties must first obtain consent from the court to proceed with mediation. There is also a duty on judicial officers to inquire into the possibility of mediation and provide the parties the opportunity to refer the dispute to mediation.

Step 2: How to refer

Parties desiring to refer the matter to mediation, both prior to the commencement of litigation and during the commencement of litigation, must make a request in writing to the clerk of the court. The clerk of the court must inform all parties to the dispute that mediation is being sought and must call on all the parties to attend a conference within ten days, for the purpose of determining whether all or some of the parties agree to refer the dispute to mediation.

Step 3: Giving notice

Where the parties in the case of an intended action, have agreed to submit their dispute to mediation, one of the parties must notify the clerk of the court by means of the prescribed notice. Where the action has already been instituted, one of the parties must notify the court concerned through the prescribed notice. In an action that has already been instituted, the clerk will file the notice under the number assigned to the case in question and submit it to the court where the case originated and request the court to adjourn the dispute for mediation proceedings. A request for mediation can be considered in chambers, however, this is at the discretion of the adjudicator or magistrate.

Step 4: Appointment of mediator

The clerk, along with the parties must appoint a mediator. If consensus cannot be reached, the clerk must appoint the mediator. The clerk will then also set a time, date and venue for the mediation and assist the parties to conclude a written mediation agreement, which must be signed by the parties. The party claiming relief must lodge a statement of claim with the clerk within ten days of signing the agreement. The party against whom relief is being claimed must lodge a statement of defence with the clerk.

In the event that litigation has already commenced, the parties are to provide the mediator with copies of the summons and plea, or statement of defence where no plea is filed in the case of action proceedings. In application proceedings the parties are to lodge copies of the founding, answering and replying affidavits, or statement of defence if no answering affidavit has been filed.

Step 5: Filing of documents

The parties are entitled to file, with the clerk of the court, any document or evidential material on which the action is based, or which the parties intend to use at mediation proceedings at least seven days before the mediation proceedings. The parties may also file or supplement these documents during the mediation proceedings.

Step 6: Representation at mediation

The parties have a right to be represented at mediation proceedings, however, this is not mandatory.

Step 7A: Successful mediation

Should the parties reach agreement as a result of the mediation, the mediator must assist the parties to draft the settlement agreement, which must then be transmitted by the mediator to the clerk. On receipt of the agreement, the clerk must place the agreement before a magistrate in chambers for noting that the dispute has been resolved or to make the agreement an order of court, by the agreement of the parties.

Step 7B: Unsuccessful mediation

If settlement is not reached in mediation between the parties, the clerk must, on receipt of the report from the mediator, file the report to enable litigation to continue, from which all suspended time periods will continue to run.

Mediation is quicker than the usual route of full blown litigation and is more cost-effective, amicable and may prove more successful for both parties involved. Attorneys, litigants and parties to a dispute are encouraged to entertain the mediation route and settle their disputes cordially outside court.

 

Author:

Caitlin Askew LLB (Rhodes) is a candidate attorney at BKM Attorneys in Johannesburg.

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This article was first published in De Rebus in 2016 (Jan/Feb) DR 17.

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Case law on Mediation

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A number of recent court cases dealt with the importance of mediation in family law matters. The most recent judgement dealing with the aspect of divorce mediation was the judgement in Brownlee v Brownlee in the South Gauteng High Court, by Acting Judge Brassey that focussed on the duty of parties to a dispute to attempt to mediate the dispute and the obligation of the opposing attorneys to encourage mediation with their clients, before litigation commences.

The judgment emphasized the virtues of mediation and also capped the fees of the attorneys on both sides because they had failed to advise their clients to go to mediation at an early stage. Normally an unsuccessful litigant pays the costs of the successful one. Judge Brassey expressed his disapproval of the parties' conduct and made each party bear their own costs. In Van den Berg v Le Roux, Judge Kgomo ordered the parties to privately mediate all future disputes with regard to their 10-year-old daughter and ordered that only subsequent to the conclusion of the mediation process could either party approach a competent court which has jurisdiction to decide the dispute.

In Townsend-Turner and another v Morrow the full bench of the Cape Provincial Division of the High Court made a similar decision when confronted with an access dispute between the father of a 7-year-old boy and the boy's maternal grandmother. The parties were ordered to attend mediation offered by private mediators of their own choice or those proposed by the office of the family advocate in an effort to resolve the issues of conflict between them including, of course, the issue of access.

The court ordered that the mediation had to commence within two weeks of the granting of the order that it should continue for a period of at least three months or for the duration of at least four mediation sessions. The parties were also ordered to share equally the costs of the mediation.

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The hitchhiker’s guide to mediation

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Dispute resolution through mediation can avoid the uncertainty, cost and rancour of court proceedings, Peter Vinden of The Vinden Partnership

Search the web for long enough and you will be sure to find many scholarly articles and books on the subject of mediation. So why produce another one?

Well, firstly, I wouldn’t describe this article as scholarly. Secondly, too many articles I have read, while being laudable academic pieces of work, are not targeted at the user. This article is, I hope, targeted at users of the process rather than academics and lawyers. I hope it will encourage parties to try mediation, prepare well and hopefully have some success in the process.

Why try?

British industry employs a significant number of people in dispute resolution. Why would that be? Is it because there are large amounts of money to be earned from parties who can be persuaded to try their luck in the casino worlds of litigation, arbitration or adjudication?

Try asking anybody you know who has been involved in a dispute about his or her experiences. They are likely to tell you four things. One, it cost a fortune. Two, if he or she had known how painful the experience would be, they would not have bothered. Three, he or she wants to avoid a repeat of the experience in the future. Four, when legal costs are taken into account, “winning” may not actually mean that you are financially better off.

 

So is mediation an answer to this problem? I say it can be and I am not on my own. Even the judiciary is in on the act.

Litigation in this country is governed by Pre-Action Protocols, or rules of engagement to you and me. Within these rules, which came into force as long ago as April 2006, is the following stark warning: “The courts take the view that litigation should be a last resort, and that claims should not be issued prematurely when a settlement is still being actively explored. Parties are warned that if the protocol is not followed (including this paragraph) then the court must have regard to such conduct when determining costs.”

What this statement is doing is to warn parties that if they do not try mediation, painful cost orders may be imposed by the court at the end of a trial. In other words, the courts are sending a clear message that parties would be better advised to try something other than litigation to resolve their differences. That something else is mediation.

Statistics indicate that 80-90% of mediations are successful. Not bad odds when compared with the casino approach.

Let’s face the facts. How many lawyers do you know that can guarantee the outcome of a reference to a legal tribunal? Not many I suspect. I won’t. If 30 years’ experience of dispute resolution has taught me one thing, it is that there can only be one “winner”. There are so many variables that can have a bearing on the outcome of a reference to legal proceedings that I will never do more than speculate on a range of possible outcomes and warn clients that adjudicators, arbitrators and, yes, even judges get things wrong from time to time.

We have a Court of Appeal and The House of Lords in this country, some would say, to allow parties to spend even more of their money on dispute resolution advisers.

At least in mediation, it is the parties that decide the outcome, on terms they are happy with.

So stop gambling and try mediation!

An overview

The process of mediation is one of the most common forms of Alternative Dispute Resolution, or ADR. The ‘alternative’ referred to is the alternative to a trial or an arbitral hearing and the process leading up to a trial.

Some may be unaware of exactly what is meant by ‘a mediation’. The following is a simple guide to a process that is a lot less harrowing and expensive than a trial.

Mediation can take place at any time but is better done when all the relevant facts are out in the open. Nobody is going to feel comfortable discussing settlement terms when they are uncertain about some important aspects of the case.

When both sides have their respective positions clear in their own minds, it might be sensible to consider mediation.

A cost/benefit analysis might show how mediation would compare with a trial and how both might compare with settling through solicitors. A trial should be the last resort of a litigant so it is unlikely that the cost/benefit projection will show this as a fruitful route to follow.

Trying to settle by negotiation can take a lot of time and can be nerve-racking and works best only when both parties have decided that dialogue and negotiation through a trusted third party is a sensible way forward. It can take some time for this synchronisation to take place.

By opting for mediation, the parties agree to meet with a readiness to try to find a mutually agreed settlement.

The mediator is sent all the relevant papers by one or both/all of the parties’ solicitors, so that he/she can understand the background to the dispute. The mediator sees the case summaries of the respective legal teams and might make some initial approaches to the parties (or their lawyers, before the mediation) so as to clear up any misunderstandings, obvious queries or inconsistencies.

The mediator should take the opportunity of enquiring as to the parties’ experience of mediation to gauge the amount of help that might be necessary to overcome any anxiety.

Before the mediation, each side decides who shall be present and who shall lead the negotiations. The leader might be one of the party members or might be a lawyer. The team must include someone with the necessary authority to settle the dispute at the mediation.

Before the meeting, the mediator will agree the format of the mediation with both/all parties so that each knows who is going to be present and who has authority to settle.

On the day of the mediation, the parties meet at the appointed venue in their own rooms and the mediator introduces himself. The room is a private one and available to the party for the duration of the mediation.

To commence the mediation, it is customary for the mediator to call the parties together in a third room. The mediator will then emphasise the two senses in which the mediation is confidential. It is confidential as between the mediator and each of the parties and also confidential as regards the outside world. (At some point later in the mediation, the mediator might ask that the confidential views or information of one party be divulged to the other, so as to make progress in the mediation. Only with the tacit approval of the party will the mediator so divulge this ‘confidential’ information.)

The mediator will ask the parties to confirm their respective powers to settle the dispute. The mediator will emphasise that all discussion is without prejudice – meaning that nothing said is binding on the parties until they want it to be, when it is then committed to writing. Up until that time, any offer made can be withdrawn or varied.

The parties are then invited to state their cases briefly – opening statements – and many believe it preferable that this should be done by the parties themselves rather than their legal representatives, as the effect on the opposition can be greater.

Some discussion might continue after the opening statements but it is usual for the mediator to break up the joint meeting and hold private meetings – caucuses – with each party in turn.

The mediator uses his skills to steer the parties towards settlement during the course of the allotted period. The time available might be agreed in advance or be open-ended.

At any time that a party chooses, it can leave the mediation. The mediator will do all in his/her power to prevent this, but this option is always available in any mediation process.

When the parties have agreed a settlement (and, surprisingly, between 80% and 90% of all mediations do reach a settlement), an agreement is drawn up, usually by the legal representatives, for the parties’ signature. The agreement may call for certain actions to be taken, such as payment of an amount from one party to another, but it should settle the matter once and for all without further ado and not least remove the uncertainty of taking the matter to a trial, perhaps winning the case, but then possibly having to fight the whole matter again if the opposing party were to lodge an appeal.

The mediator is usually paid in advance by both parties and his fee will either be in the form of a lump sum or on an hourly rate depending on the size and complexity of the dispute.

 

Author:

Peter Vinden is a practising arbitrator, adjudicator, mediator and expert. He is chief executive of The Vinden Partnership and can be contacted by email at pvinden@vinden.co.uk.

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Why Mediation Works

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"Traditional litigation is a mistake that must be corrected... For some disputes trials will be the only means, but for many claims trials by adversarial contest must in time go the way of the ancient trial by battle and blood. Our system is too costly, too painful, too destructive, too inefficient for really civilized people."
Chief Justice Warren E. Burger, (Ret.) U.S. Supreme Court.

We are in the midst of a litigation crisis. The high cost and long delays associated with the trial of civil matters often make litigation an impractical method of resolving disputes. It is not uncommon for the attorney's fees, expert witness fees, jury fees, court reporter fees and other related costs to exceed the amount in dispute. Parties increasingly find that they are spending more to litigate than the cost to settle the matter.

The increasing number of lawsuits filed each year is indicative of the unwillingness or inability of parties and their attorneys to effectively utilize negotiation to resolve disputes.

Because the current legal environment discourages the early settlement of disputes, society is demanding a new approach for resolving disputes more efficiently. That new approach is mediation.

WHAT IS MEDIATION?

Mediation is a process for resolving disputes by which an independent mediator assists the parties in reaching a mutually satisfactory settlement. It is an extension of the parties own negotiations and is sometimes referred to as a "supercharged negotiation."

A mediation session involves a discussion of the dispute by the parties, as opposed to the formal presentation of witnesses and evidence such as takes place in a trial or arbitration. The session will normally be attended only by the mediator, the parties and their attorneys. Because of the informality of the process, a mediation can usually be completed in a day or less.

The mediation process is entirely voluntary and non-binding. The mediator has no power to render a decision or to force the parties to accept a settlement. Rather, the mediator's role is to assist the parties in their negotiations by identifying obstacles to settlement and developing strategies for overcoming them.

A mediation session is private and confidential. It is normally held in a private office or meeting room and no public record is made of the proceedings. If no settlement is reached any statements during the proceedings are inadmissible as evidence in any subsequent litigation.

A mediation session typically begins with a joint meeting of the parties, their attorneys and in some cases, insurance company representatives. The mediator first explains the format and discusses the confidential and non-binding nature of the proceedings. The mediator will then ask the attorneys for each of the parties to make a presentation of their case, identifying the issues in dispute.

Following the joint meeting, the mediator will usually separate the parties and begin meeting with them in a series of private, confidential meetings called "caucuses". In these caucuses, the mediator works with each of the parties to analyze their case and develop options for settlement. Normally, the mediator will caucus numerous times with both sides until the case either settles or it becomes apparent that settlement will not be reached.

Mediation is different from an arbitration in that the mediator does not render a decision. Instead, mediation allows the parties to make their own decisions and fashion their own settlement. The mediator generally doesn't make recommendations but rather, allows the parties to make their own decisions based on a realistic analysis of their case.

WHY MEDIATION WORKS

The American Arbitration Association reports that over 85% of all mediations result in a settlement. This is true even where all prior attempts at settlement have failed, where the parties are pessimistic about the prospects of settlement, and where the parties have spent substantial amounts of time and money preparing for a trial. So why does mediation work, when the parties have been unable to settle the case themselves? There are a number of reasons.

First, negotiations between parties or their attorneys may never take place without the assistance of a third party mediator. Attorneys often fear that the making of any "reasonable" settlement offer will be taken as a sign of weakness or will be used by the other side as the starting point for the next round of negotiations. Mediation provides a safe environment for negotiation because the mediator can control and direct the communications. In this fashion, unproductive discussions can be avoided and concessions or proposals will be communicated only if they are likely to lead to a settlement.

Second, in those cases where some negotiations have taken place, they are often unsuccessful because the parties lack essential negotiation skills. Attorneys are often more interested in posturing, than in resolving disputes. As a result, they often employ hard bargaining tactics which emphasize the differences in their positions rather than seeking a common ground for settlement. Since the mediator's job is to keep the parties focused on exploring productive avenues to settlement, posturing and hard bargaining are often reduced or eliminated.

Third, mediation provides the opportunity for all parties to meet at the bargaining table for the express purpose of discussing settlement. All decision-makers necessary to resolve a problem are normally present. These decision-makers, who otherwise may be unavailable or distracted by other business matters, are able to focus their entire attention on reaching a settlement.

Fourth, during the mediation session, each party is given the opportunity to directly educate and influence their opponents in the opening presentation. Important issues can be emphasized and facts can be presented in a more favorable light. Also, the intensity of a party's feelings or emotions can be conveyed. As a result, the mediation session normally provides each side with a more realistic view of the opposing position (one not filtered through lawyers) and often results in the consideration of settlement proposals that otherwise would have been rejected.

Fifth, mediation allows each side to "test market" a settlement proposal by privately conveying the proposal to the mediator in a caucus. Unless authorized to do so, the mediator will not convey the proposal to the other party. The mediator will, however, be able to receive confidential proposals from the other side. As a consequence, the mediator will be able to determine whether a proposal is feasible without actually disclosing it to the other side. This allows each side to fully explore settlement options without negotiating against themselves or appearing to "give in".

Sixth, mediation offers each party a "realistic" look at their case and what results they are likely to achieve in court or arbitration. As the parties become clear on what they can realistically expect to achieve, their positions on settlement become more reasonable and flexible.

Seventh, mediation assists the parties in developing options for settlement. The more options that are developed, the greater the chances of success. Experience demonstrates that attorneys often excel in developing facts that support their positions but bog down when it comes to developing settlement options. The mediator can assist the parties to clarify their real objective and to consider alternatives that might be overlooked by attorneys engaged in battle.

CONCLUSION

The bottom line is that mediation works! It works because it brings all necessary parties to the bargaining table where they can "realistically" evaluate their positions and safely explore settlement options. It works in settling over 85% of the cases in which it is utilized, including those where the parties have been unable or unwilling to negotiate, or have taken unrealistic or intransigent positions.

Today, parties litigate because they know of no better alternative. However, as the benefits of mediation become more widely recognized, it will undoubtedly become the most utilized tool for resolving civil disputes in the future.

 

Author:

Michael J. Roberts is a full-time professional mediator involved in resolving disputes throughout the United States. He has 36 years of major law firm experience as a senior litigation partner. Since 1985, Mike has served as a mediator and special master in more than 4,000 cases with aggregate settlements in excess of $800 million. Mike's mediation practice consists primarily of major financial controversies and complex multi-party matters with emphasis on business, real estate, construction, employment and insurance. Mike's clients include real estate developers, contractors, publicly held companies, institutional lenders, health care providers, educational institutions, governmental agencies, insurance companies and the like. He is a frequent speaker at professional and industry seminars throughout the United States on various topics involving alternative dispute resolution.

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