Although not always well understood in South Africa, mediation is a powerful dispute resolution strategy. It should always be considered as one of the options in any dispute, and mediation attorneys should be consulted.
A simple story helps illustrate the philosophy and benefits of mediation. As the story goes, two parties had a dispute over a shipment of oranges. Time was of the essence, and as the parties’ version of events differed from one another, there would be considerable delays in any litigation process. This was far from ideal as the oranges were starting to perish while the ship was docked at its port.
The parties had already spent a considerable amount of money on legal fees in instituting and defending the litigation respectively. They realised that litigation had become a “lose-lose” method of resolving the dispute, and decided that they had nothing to lose by agreeing to the assistance of a mediator. The parties didn’t have any hope of reaching a settlement at all, as they were pitted against each other in the litigation process and were further from reaching a settlement now than they were when litigation began.
At the first meeting, the mediator asked each party why they wanted the shipment of oranges. The first party answered that he needed the oranges to make orange juice, while the other party said he needed the skin of the oranges to make marmalade. The parties were thus able to settle the dispute, with each party getting what he needed.
Skilled mediators, like the one in this story, assist parties to settle disputes by transforming “lose-lose” situations into “win-win” scenarios that often cannot be seen or realised without the assistance of a mediator.
The benefits of mediation include greater creativity in crafting a solution, speed of action, lower costs, and appropriateness in contexts where there is going to be an ongoing relationship between parties (such as in family law matters or between shareholders or partners). Each case should be considered on its own merits, and sometimes a combination of strategies can also be appropriate.
Gunston Strandvik offers mediation services in both commercial and family law contexts, and is part of a network of independent mediators.
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