What is Mediation?
Mediation is a key form of Alternative Dispute Resolution (ADR). The alternative to a costly, drawn-out court procedure where a judge ultimately has the final say and passes judgment.
Mediation is a confidential, voluntary, and without prejudice process, where the participants usually with the assistance of a trained independent mediator attempt to facilitate the resolution of a dispute through negotiation. The aim is to find a mutually acceptable solution.
The mediation takes place either in person or through online technology. The participants may, or may not be joined by their lawyers or advisors.
Mediation is intended generally to be a forward-focused conversation. The past cannot be changed.
Mediation is not an arbitration. Nor a trial. It does not require the mediator to know or to tell the participants the solution – or generally even to venture suggestions.
Litigation is costly and results in unnecessary delays. It is for this very reason, and to address the delays that arbitration has become a more popular and attractive form of dispute resolution. Arbitration in itself is however still expensive and relatively slow.
Enters the new kid on the block – Effective 9 March 2020, Rule 41A was Incorporated in the High Court Rules. This Rule requires both parties to a dispute to initiate potential mediation from the onset.
This in effect means that the party bringing the action or application is obliged to request the other side to consider and advise whether it agrees to refer its dispute to mediation.
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