Theme : Mediation as an alternative dispute resolution.
Mediation is a way of settle dispute out of court. It can be define as a process in which an impartial third party called the mediator is invited to facilitate the resolution of a dispute by the self-determined agreement of the disputants.
The mediator facilitates communication, promotes understanding, focuses the parties on their interest and uses creative problem-solving techniques to enable the parties to reach to their own agreement.
Mediation has many stages. As stages we have:
- Preparing stage;
- Opening stage;
- Agenda/issue setting stage;
- Bargaining stage;
- Reaching an agreement/conclusion
Mediation as an alternative dispute resolution has advantages and disadvantages.
- Advantages of mediation:
Mediation tends to be faster because of the presence of a third party.
It achieves a win-win solution instead of a win-lose approach, the both parties are satisfied.
Mediation is less expensive compare to the other alternative dispute resolution.
The opinion of the mediator is not binding on the parties as they can accept or reject such opinion.
- Disadvantages of mediation
Enforcement of mediation may lead to fresh litigation as it is merely an agreement between the parties.
There is possibility of the parties not reaching to an agreement on all or some of the issues in dispute.
When the mediator is partial, the quality of the agreement reached by the parties may not be much.
In conclusion, a lawyer can play the role of a mediator. In this case he compels the parties to come to an agreement according to their whish not against. He just facilitates such agreement. The parties can choose mediation when they desire to preserve existing relationship. Also its depend on the size and nature of the dispute and the subject matter of the dispute.
Barrister Jocelyne ASOUKENG