What is Mediation?
Why a Mediator?
Every effective organization, from families to complex businesses, from political parties to sports teams, will often have to manage conflict. Failure to resolve conflict can result in division within an organization which in turn leads to lower team morale together with the problems that attend divided and disgruntled employees or members. Invariably bringing in the services of an outside mediator can resolve conflict quickly and effectively so that the organization can do what it is best at doing.
What is mediation?
Mediation is the process where a neutral third party, from outside the organization, assists parties involved in a dispute to arrive at a solution. In other words mediation is assisted dispute resolution. Mediators assist in identifying issues and information needs, reducing obstacles to communication, exploring alternatives and focusing on the needs and interests of those most affected by the dispute. Unlike court proceedings, mediation involves the direct participation of the parties in conflict.
Different types of mediation.
There are various types of mediation. Each mediation process will be managed differently depending on the type of dispute and on the personal style of the mediator. The two main types of mediation are problem-solving mediation and transformative mediation but both approaches tend to have elements of the other in them. The difference in the two approaches lies in how the conflict is initially conceptualised.
Mediation can and often does include the attorneys of the disputing parties and in particular when the attorneys feel that litigation is not in the best interests of their clients.
Preferably mediators should be accredited by a professional body such as the African Centre for Dispute Resolution or some other reputable and registered organization. In addition trained mediators need to keep their qualifications up to date.
What are the benefits of mediation for organizations?
People in business are beginning to realise that litigation is often costly, both financially and in terms of organisational stress. In addition going to court is time consuming. As the litigation process focuses on a strict interpretation of applicable laws, the outcomes produced by litigation often ignore the interests and needs of the parties - economic and business factors are not considered by the court. Cost-saving is not only a business imperative but also an ethical one.
Both in South Africa and elsewhere (e.g. certain other parts of Africa, the UK, USA, Canada, Australia, Asia, and the EU) mediation is increasingly being used as a more effective means of resolving disputes, simply because mediation offers various advantages.
Advantages of Mediation include:
- comprehensive and customised solutions which are more creative and wider in scope than could normally be achieved through a legal process become possible through mediation;
- a greater degree of control and predictability of the outcome - parties who negotiate their own settlements, with a mediator guiding them, have more control over the outcome of their dispute and more personal empowerment in the resolution;
- expedited settlements - in an era when it may take as long as a year for a case to proceed to court and multiple years if a case goes to appeal, the mediation alternative often provides a more suitable option.
- mutually satisfactory outcomes are reached as solutions are agreed to rather than imposed by a third party decision maker
- a higher rate of compliance – as a result of the satisfactory outcome, parties are more likely to comply with the terms of the solution ensuring that the agreement remains in tact over time and is therefore sustainable
- preservation of an existing relationship or termination of a relationship in a more amicable way - a mediated settlement addresses all the parties' interests.
- Research in the UK revealed that roughly 60% of commercial disputes are resolved at mediation with a further 20% being resolved within two months of the mediation intervention. Typically mediation should occur within one working day and rarely extends beyond two days.
In summary - Why use mediation?
- It is an effective tool for conflict resolution
- It can avoid costly litigation
- Issues raised and discussed are without prejudice
- The process expedites a resolution
- Rather than avoiding issues they can be managed by a third party and emotions are contextualised
- Often the potentially divisive nature of conflict can be mitigated
