Why Mediation?
Mediation: Mediation is a process by which a mediator assists the parties in actual or potential litigation to resolve the dispute between them by facilitating discussions between the parties, assisting them in identifying issues, clarifying priorities, exploring areas of compromise, and generating options in an attempt to resolve the dispute. It is an alternative to having the dispute adjudicated in court.
Control: The parties themselves are in control of the process and its outcome.
Confidential: The process is private and although informal, completely confidential.
Fast: It is a speedy, informal, and flexible process that may lead to innovative solutions to the parties’ issues and disputes.
Cost Efficient: Because mediation generally requires less preparation, it is less formal, and it is always significantly less costly than other sorts of dispute resolution.
Brings Parties Together: The parties can save and sometimes rebuild their relationship like during a family dispute or commercial dispute.
Convenient: The parties themselves control the time, location, and duration of the proceedings to large extent. Scheduling isn’t subject to the convenience of courts.
Direct Communication: During mediation, there is party to party direct communication, and no one is subjected to at the serial cross-examination.
The Mediator: The mediator is not a judge. The Mediator merely helps the Parties to work towards settlement of their dispute. The Parties make the decision on what their final settlement will look like. This process is not a unilateral one. In other words, one Party alone does not decide the outcome. Both Parties play a critical role in determining whether there will be a settlement. The principle of Party self-determination ensures that Parties are better able to come up with their own solutions to meet their needs.
General: Mediation has the effect of reducing the conflict between the Parties. By retaining a future-focus it prevents arguments about right and wrong from developing further. It avoids exacerbating the hostility between the Parties. Mediation is not bound by time rules. It is a process that can take place at any time, and at any place. Because it is an informal process, it is not dependent upon the availability of a Court nor is it dependent upon the availability of a Judge. All it requires is a time and date when the Mediator and the Parties are available.
Service offerings
RECOMMEND SELECTION
Upon submission of your case details an assessment of the matter is done. Taking into consideration the nature of the dispute and comparing it to the mediator’s field of expertise, availability, and location. Should the case require unique specifications with regards to mediator’s background this will also be taken into account.
AUTO SELECTION
A brief summery of your matter (not disclosing any particulars), will be made available to a selection of applicable mediators. Leaving the mediator to inform TIMA of his availability. TIMA will facilitate the initial meeting.
SELF SELECTION
The client can review the various mediator profiles and select with their application a preferred mediator. TIMA will revise and facilitate the meeting, availability depending. We recommend that at least two mediators be selected.
What you need to know?
Settlement Agreement
As a result of mediation, the parties may agree to resolve their dispute. The terms of agreement are listed in a settlement agreement and the written agreement is signed by the parties. Typically, the mediator facilitates the agreement but does not sign the agreement. The parties may agree that the agreement be made by order of court.
Mediation, Arbitration, and litigation
Litigation is the process of going to court in order to have a dispute adjudicated. Going to court is usually a very costly and time-consuming process. The longer a dispute lasts, the more the parties pay in legal fees. Also, because litigation is heard by a judge it is considered a public matter and is open to the public. The judge makes the decision that resolves the dispute not the parties.
Arbitration utilizes a neutral third party to hear a dispute between parties. The hearing is informal, and the parties mutually select the arbitrator. The arbitrator is retained to adjudicate the dispute and the decision is final and binding on the parties. Arbitration is more cost efficient and quicker than litigation, but it is the arbitrator, not the parties, who decides the the outcome of the dispute.
Mediation is a much quicker process than litigation or arbitration. The parties also have more control over the final resolution. The parties mutually select the mediator, and the mediator helps the parties resolve the dispute in a cost-efficient manner.
Rule 41A
During March 2020 Rule 41A of the Uniform Rules of the High Court came into effect. Rule 41A is titled ‘Mediation as a Dispute Resolution Mechanism’ and the purpose of this new rule is to compel parties to engage in mediation as part of the litigation and dispute resolution process.
Essentially parties are compelled to consider mediation as a dispute resolution mechanism before a Summons or Application is issued and a declaration to this effect has to be filed when a Summons or Application is issued. If the parties agree that mediation is a viable alternative to litigation, then the litigation process is suspended for a period of thirty days in order for the parties to finalise mediation and any agreement reached during such mediation can then be made an Order of Court. The parties can either agree on who should be liable for the costs of mediation or they can request the court to make an appropriate order as to costs.
It is important to note that the court mandated mediation in terms of the new rule remains confidential and no disclosures made during the process may later be used, in the event that there were to be subsequent litigation processes.
Although Rule 41A does not compel parties to engage in mediation before proceeding with litigation it is a step in the right direction to resolving disputes swiftly and will, at the very least, force parties to consider mediation as a viable and cost-effective alternative.
Supported organisations
All TiMA mediators have been subjected to a strict vetting process prior to becoming a member. This includes verifying the relevant qualifications and required experience to represent the organization. Requirements vary depending on the field of expertise however mediation experience is compulsory.
