Mediation: The justice system’s best kept secret

If you have ever been embroiled in a messy dispute, especially when it comes to divorces and childcare, but could not afford lengthy expensive court cases, mediation might be just the solution.

In order to provide all citizens easy fair access to the law and to alleviate the strain on courts, the Law for Courts act 107 of 1985 was amended in rule 760 in 2013 to include mediation as a means to settle disputes.

But what is mediation in layman’s terms? To answer this question the Record spoke to accredited mediator Johann Marx of StatusSa Mediation.

“Currently it is expected of courts to have at least three cases a day be mediated. These could include civil as well as commercial cases. Due to the fact that there are certain rates that mediators have to charge as per the court and the fact that the mediation process is usually over within three to six sessions, it is an extremely cost efficient and quick alternative to going to court,” said Marx.

“The mediator takes an empathetic stance but does not get involved. The goal is for both parties to use the process to come to an agreement. This differs from the court where the law is strictly used and one part loses while the other wins. With mediation, which is a voluntary process, it is usually a win-win situation,” explained Marx.

Any agreement that is reached becomes a court order and is binding, but if an agreement is reached but needs to be revised at a later stage, a mediation process can be arranged once again, according to Marx.

“The success rates of mediation is about 70 per cent and costs as much as 70 per cent less than normal court cases. A mediation case will generally cost between R2500 and R7000 of which the two parties involved shares the costs.

“Mediation is not a judgemental process, counselling or therapy but an effort to reach an amicable less traumatic solution. Where children are involved their interests, and not the parent’s are the ultimate focus,” said Marx.

Marx cited a plethora of advantages including that it allows divorcees greater control over the outcome of their divorces, parties are actively involved in decision making and not at the mercy of the court’s more rigid judgement, parties are more likely to honour mediated agreements, it creates constructive and ongoing relationships between parties and is a flexible and creative process.

Marx says although it should be a voluntary process that a certificate of non-participation could be issued which will in turn force the non-participant to go to court. Lawyers are under obligation to first inform parties that they have the option of mediation and courts might decide to refer parties first to mediation before hearing a case before the court.

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