Mediation

Mediation is generally a voluntary, confidential, non-binding process in which an independent, accredited mediator facilitates constructive discussions between the disputing parties to help them reach a mutually acceptable resolution to their dispute.

Although generally a voluntary process, the Judge President of the Gauteng High Court has now issued a Mediation Directive and Protocol that effectively makes mediation mandator for all civil action proceedings. Only in exceptional circumstances will parties be able to avoid mediation in civil actions. Mediation is therefore become more relevant and important as an alternative method of dispute resolution.

It is important to note that, even with mandatory mediation, the mediator does not adjudicate the dispute or impose an outcome. Rather, they assist the parties to clarify issues, explore options, and negotiate a settlement. Only if an agreement is reached are the terms recorded in a binding settlement agreement.

The value in mediation is confidentiality, cost‑effectiveness, orthogonal solutions and the potential of preserving of relationships. Attempting mediation before going to court could help the parties avoid protracted and costly legal proceedings. It is particularly advantageous where commercial interests, ongoing contracts, or reputational concerns are at stake, or where flexible, creative outcomes are preferable.

Most civil and commercial disputes are suitable for mediation. These include –

• shareholder, partnership, and joint venture disputes;
• supply, distribution, franchising, and other contractual disputes;
• construction and engineering claims;
• distribution and transportation disputes;
• banking and financial services matters;
• insolvency‑related issues including business rescue negotiations;
• employment and workplace disputes at appropriate stages;
• property, landlord‑tenant and sectional title matters;
• intellectual property and technology disputes; and
• insurance coverage and liability claims.

Mediation is also well-suited to multi‑party matters and disputes involving public and regulatory bodies, where structured dialogue and confidentiality can unlock a pragmatic solution that litigation may not deliver.

Not applicable to mediation.  

Not applicable to mediation.

Within our firm we have accredited mediators who can assist as mediators or legal advisors in a mediated environment. They understand the principles of facilitated mediation and will advise and guide clients on whether it is appropriate alternative dispute resolution method for a given dispute and how best to take advantage of the mechanism. Where suitable, they use their understanding of mediation to de‑escalate conflict and structure appropriate settlements that address both legal rights and commercial interests. By resolving disputes efficiently and confidentially, whether by way of formal mediation or informally through negotiations, we will help to find a way to preserve relationships, keep projects on track, and reduce the disruption and cost associated with formal dispute resolution.