Mediation is a method of dispute resolution in which a mediator guides people (or groups of people) through difficult conversations, to achieve positive outcomes. The mediator does not make the decisions – ultimately, the parties choose their own agreement. This is one of the principal strengths of the process. Mediation is used globally in a wide range of disputes – from arguments between family members, to neighbourhood, community and regional disputes and even international issues. The common factor in all of these, is the desire to limit antagonism and to permit parties to contribute to the outcomes in a structured and protected way. These outcomes often feature creative solutions that are beyond anything a court could devise (see ‘Litigation’). Mediation strives to uncover underlying reasons for conflict and deal with the causes, not just the effects.
Mediation is becoming an important part of the law and peace-making process in South Africa. It is recommended or required in 49 statutes and is being recognised by the courts as a necessary prerequisite, and the preferred alternate dispute resolution method, in many instances. Examples are – Divorce and Family Law, Labour Law, the Children’s Act, Consumer Protection Act, Companies Act, Credit Agreements Act and many more. Mediation is the ideal process for resolving disputes between family members, people in business, neighbours, between government and citizens, and within communities – in fact, wherever it is important that relationships be preserved.
Litigation refers to the court process of dispute adjudication. When a complaint (e.g. a criminal charge) or a civil claim is referred to a court, lawyers are required to specify with great clarity, exactly what legal issues are in dispute. The court then considers the case on the basis of those specified items, after hearing and considering evidence and arguments designed to focus on the specifics. Unfortunately, this process of sharp focus on facts and legal issues is not able to make suggestions or rulings on other, underlying causes and disruptive elements. Often, a legal technicality will lead to an apparent injustice – as, for example, when a legal technicality blocks evidence and leads to a guilty person escaping conviction. This can be the result of deliberate manipulation of the system. The whole, lengthy process has the effect of delaying consideration of those focused issues, while the conflict festers and the real causes are not resolved. Litigation usually leads to delays and the fracturing or smothering of communication, while significant and even ruinous costs can be incurred and relationships ruined forever. Litigation cannot be avoided in all cases – sometimes, a crisp decision by an expert adjudicator is the only way to deal with an issue.
A mediator is, preferably, a trained professional. Many untrained but willing people act as mediators in family, business and other relationships, on a daily basis. One problem is that such people often have a stake in the outcome – e.g. a family or religious leader. This can lead to undue influence on the parties, limiting their options and even their participation in the mediation process. By contrast, a total lack of bias and the absence of undue influence, are the goals of all professional mediators.
The trained and independent (unbiased) mediator has internationally recognised training to acquire the many skills and techniques necessary to help people to work through the aspects, options and interaction necessary to reach settlement on a basis that suits everybody. Roger Knowles is such a mediator. He has many years of experience in a wide range of issues and has the age-related wisdom, technical knowledge and ‘people’ skills to guide people through the process of exploring options and reaching agreement.