More About Mediation Services

1) Profile

Nicolaas Marais is a senior commercial attorney and an international accredited mediator. His career spans commercial law, labour law and complex transactions. He brings practical, dealfocused judgement to mediation, with a style that is firm on process and respectful of people. Accreditation includes international training and South African certification; Nicolaas offers facilitative mediation with evaluative input by prior agreement.

2) What is Mediation

This is a process in which parties attend a dispute with the assistance of a dispute resolution practitioner (the mediator) to identify the disputed issues, develop options, consider alternatives and endeavour to reach an amicable agreement. The mediator has no advisory nor determinative role in regards to the content of the dispute or the outcome of its resolution but may advise on or determine the process of mediation whereby resolution is attempted. Mediation may be undertaken voluntary, under a court order, or subject to an existing contractual agreement.

The mediation process is flexible. The mediator meets with the parties in a joint and private side meetings. The process as a whole and the discussions in the side meeting are confidential, without prejudice and off the record. The mediator does not sit in judgement but is involved with the parties in the process of the negotiations.

3) Types of Mediation

Transformative Mediation

Transformative mediation is typically used to assist parties to improve or transform relationships. It is therefore more focused on relationships between parties than specific disputes. It is most commonly used in South Africa and has been in political or community mediation to resolve family conflicts in the Relationship by Objective process in the employment field, and more recently in workplace mediation. The mediator encourages the parties to talk directly to one another and uses a range of communication skills in a very flexible process.

In a nutshell, the goal of transformative mediation is to help the participants achieve empowerment and recognition. Transformative mediation is generally a forward looking process to build a durable future. However, the participants will be asked to work backwards to where, in their perspective, the problem that led to the dispute first began. The mediator then works together with the participants to unpack it from there. The techniques are not mutually exclusive and a mediator may draw on both facilitative and transformative mediation techniques in order to assist the participants to listen and to acknowledge each other’s perspectives and interests. The art of transformative mediations is sometimes described as a technique to “rip the plaster off to let the wound bleed so that it can fully heal”.

Transformative mediation is successful if one or both participants become empowered to better handle their own situation or the participants recognise better, the concerns and issues of the other.

Facilitative Mediation

In facilitative mediation the primary concern of the mediator is to set in place and manage a process that is designed to assist the participants to negotiate an agreed outcome. The mediator will not give his or her opinion on the content or merits of the issues between the participants and will focus instead on the process that is best suited to achieve a negotiated outcome.

Facilitative mediation is one of the processes that utilises principled negotiation, which means it centres on negotiation on merits rather than on defending or attacking positions. Principled negotiation requires the negotiator to be soft or co-operative with people and hard on issues. The process aims to separate the people from the problem; to focus on interest not positions; to generate a variety of options before making decisions; and to base solutions on objective criteria.

Evaluative Mediation

In evaluative mediation the mediator engages far more actively in the substance of the issues and may typically be an expert in the relevant subject matter. He or she may give advice or recommendations to the participants on the appropriate outcome, may evaluate the strengths and weaknesses of the participants’ positions and arguments in the negotiation process, and may attempt to persuade them to accept a particular outcome.

The risk with this model of mediation is that the mediator may be perceived by one of the participants as being partial to another, which may result in the mediator losing the trust of both parties. Unless the mediator has been contracted to perform an evaluative mediation and the mediation agreement permits or requires such a foray, mediators will decline to offer an evaluative opinion. Facilitative mediators hold that it is the participants who have responsibility for the problem, and who will own the solution.

Sometimes the participants and the mediator agree in advance that the mediation should be evaluative, either from the outset or if the facilitative mediation does not provide a solution. Sometimes an evaluation is given to all participants in an open session. If this is the preferred solution, then the participants needs to be aware of the implication and the risk of an open valuation being given. Most mediators prefer an assessment of the strengths and weaknesses of a case to be given to each participant in private. This means neither of the participants will know what the mediator said to the other participants.  The mediator needs in delivering the evaluation be at pains to emphasise the neutrality of his or her role and to state that any settlement proposal appears to be the best commercial solution, given the facts and opinions disclosed. The mediator will emphasise that the evaluation is non-binding and state the opinion given in private will be substantially identical to both participants, albeit that there may be a different emphasis in each case.

Experiences evaluative mediator will generally not seek to justify their opinion with detailed references to facts or law. Having offered an evaluation, the mediator will give the participants time to consider the opinion expressed and if necessary reassess their negotiation positions. The mediator may need to devise strategies for dealing with disappointed participants to keep them engaged in solution building.

4) Shortcomings of Litigation and Arbitration

1. They are often slow and expensive;
2. Outcomes may be unpredictable;
3. The decision maker is usually limited to determine the dispute placed before his or her on terms limited by the pleadings or dispute referral and general principles of law;
4. A significant delay in outcomes may frustrate the party’s sense of justice;
5. Litigation is backward looking;
6. The litigation process may cause significant harm to relationships between parties;
7. Cost and delays may effectively deprive a party of access to justice;
8. Litigation through courts imposes an administrative burden on the state; and
9. Litigation through courts is public and may be the subject of public discussion and debate.

5) Considerations that should be taken into account in deciding whether to mediate or not

Mediation requires a significant shift in thinking on the part of litigants and their representatives for them to work towards a mutually acceptable outcome rather than the “win-lose” outcome of litigation. The question whether to mediate, the decision to propose mediation, the response to court rule induced mediation before a court date is allocated or a proposal from the other side to mediate and the timing of mediation should be treated by every representative as matters of fundamental strategic and tactical importance in the dispute resolution process.

Some kinds of disputes have been identified as being particularly suitable for mediation. These includes disputes between parties who aspire to or wish to continue a long-term relationship, multiparty disputes, cross border or multi-jurisdictional disputes, or disputes where there are significant collateral issues.

Acland (A Sudden outbreak of Common Sense) suggest the following list of circumstances that favour mediation:

1. Relationships are important;
2. The parties want to retain control of the outcome;
3. Both sides believe they have a good case;
4. There is no great disparity in power;
5. Speed is important;
6. Bad communication and resultant misunderstanding is largely to blame for the dispute;
7. Highly complex and technical issues are involved;
8. An adverse precedent will be a nuisance to both parties;
9. Confidentiality is important;
10. The case will probably settle out of court anyway – but not before both sides have incurred substantial legal costs;
11. A party may incur an adversarial cost order if it does not mediate or will not be allocated a court date;
12. Both sides need, most of all, the opportunity to “let off steam”; and
13. Neither side really want to litigate.

Examples of situations which mediation may not be appropriate:

1. Parties need a precedent being set;
2. There is no bona fide dispute. There are ulterior motives for the dispute;
3. There is a need for a remedy that mediation could not achieve;
4. It would not be in the public interest for a person to compromise his or her rights.

The timing of mediation is also important that is if the dispute is “ripe” for mediation. The cost of the conflict and in terms of management and other institutional cost, demonstrate the value of early resolution of a dispute.