THERE’S NO REAL DOWNSIDE TO MEDIATION WITH MINIMAL RISK, AND THE UPSIDE OF COURSE, IS ACCEPTABLE SETTLEMENT AT A FRACTION OF THE COST OF LITIGATION OR ARBITRATION.
HOW DOES MEDIATION WORK?
The Mediator receives information privately when a party prefers that concerns, weaknesses, strengths, and underlying interests are disclosed. These confidentialities are not available to the other side but do provide the Mediator with a big picture overview. Fresh eyes identify commonalities, the endgame being to activate thinking and creativity, leaving no value on the table.
Nothing gets ‘heard’ by the other party without explicit permission. Each can openly discuss necessities, negotiables, restrictions, or desirables. The Mediator accesses the ‘agenda’ of both sides impartially while reframing positions, and reality testing ideas.
An example of reframing might be that loud music is not permitted under the rules of the Body Corp and that penalties must be levied; reframed as “no more loud music is what is needed”.
An example of reality testing is where the party believes that litigation is the only way to resolution. Reality testing of that would be a suggestion that costs and implications of litigation might be established with a lawyer.
The Mediator’s function is to identify possibilities that the parties may both be willing to consider. Ideally those ideas come from the parties themselves as a result of the Mediator’s really hearing what is being said, hearing what is not being said, and prompting thoughts that even the party hasn’t imagined.
Those possibilities might be proposed, adjusted, or modified in a way that leads to agreement. This rarely deals with the big-picture all at once. A collection of “small agreements in principle” forms the basis of a big-picture solution. It could be approached as “agree to nothing until you agree to everything”.
WHAT IS MEDIATION?
European Union Law describes Mediation appropriately as “a structured process, however named or referred to, whereby two or more parties to a dispute attempt by themselves, on a voluntary basis, to reach an agreement on the settlement of their dispute with the assistance of a mediator.”
Good Mediation will dig deep down under the surface to explore the underlying concerns of the parties.
Mediation is a catalyst for a collaborative approach to work to together, brainstorm, and ultimately generate creative solutions.
What is revealed and ‘put on the table’ by the parties is like the visible caps of an iceberg. It is the underlying interests ‘below the waterline’ that must be explored and discovered as common ground, shared interests, and ‘trade-ables’.
The Mediator will propose “what ifs” to reality test assumptions; delving into issues to find ways of bringing the parties together. Settlement is usually the culmination of several small trades and concessions all wrapped up in to a final agreement.
WHEN IS THE RIGHT TIME TO MEDIATE?
As soon as possible after negotiations fail or where direct negotiation is off the table for either party and for any reason.
Don’t wait until you’ve entered the ‘Zone of Escalation’ where the conflict takes on a life of its own and intensifies the original dispute, becoming more difficult to control.
When there’s time enough to work through everything until agreement is reached.
Mediation works when there is time, space, freedom, and willingness to deal with conflict in a way that functions best for both parties. It is holistic and should not separate a dispute from underlying conflict.
Mediators need time for groundwork to understand exceptional aspects of a situation. All parties need time to work through details and time for consideration and consultation to get high quality, enduring outcomes, rather than quick fixes.
Allowing mediation to fail leaves you with a poor outcome. It means that a third person will apply a rule or their own opinion. That makes for half-baked solutions that ignores what both parties have to live with afterwards.
WHERE TO MEDIATE
Ideally it is at a neutral location with access to the usual office facilities like printing, coffee, restrooms etc. Most importantly, there needs to be a space where one of the parties can work, rest, or ruminate. This allows for the other to join the Mediator in private discussions.
Mediation is increasingly being done online through sophisticated and secure video conferencing resources. Getting all parties, possibly their attorneys, and a Mediator together in one place at the same time is challenging and potentially expensive… referred to as the “convening penalty”. Online Mediation functions in much the same way as ‘live’ Mediation. There is synchronous online Mediation where all parties are present simultaneously. There is also asynchronous online Mediation – where participants can clock in at times that work for them. It can, and usually is, a combination of the two, together with other communications that suit the situation, like email or the telephone. This provides the disputants with a host of options to make the experience as efficient and cost-effective as possible.
WHO SHOULD MEDIATE?
The Mediator should be highly trained, mature, and have a good grounding in dispute settlement, conflict theory and conflict management – with plenty ‘street-smarts’!!
Nobody is better equipped to ensure that all underlying concerns of both parties are attended to than an impartial, professional Mediator.
With years of experience in business, and subsequent training, I have just that. Together with my Post-Grad Dispute Settlement Studies at Stellenbosch University, I am an accredited CEDR Mediator (Center for Effective Dispute Resolution, London), qualified to conduct psychometric testing of conflict behaviour, and a certified trainer of several top conflict management training courses.
I have also created my own comprehensive conflict management training course and completed the Paddocks|UCT Dispute Resolution in Community Schemes Course.
Mediation preserves relationships, and avoids bad publicity and rumour mongering. Discussions can be as free as the parties would like them to be – no content can be used as evidence at a later stage. Unlike arbitration, the disputants control the outcome – not a third party.
Laws and rules applied in adjudication, arbitration, or in a court trial cannot possibly accommodate all situations, personalities, or practicalities. Applying a rule or law that ignores those special circumstances cheats both parties out of the chance to put together something that works for them.
Mediation is voluntary – anyone can opt out at any time for any reason, or for no reason at all.
It is non-binding: you don’t form agreements unless you want to and you can always revert to litigation or arbitration).
A Caveat: In the Sectional Title, Community Schemes, and similar environments, there are limitations.
For example, you can’t have a provision in the Body Corp rules that forces anyone to engage in private Alternative Dispute Resolution – or ADR. 1.
It is a requirement is that complaints are lodged with the Community Schemes Ombud Service 2 or CSOS unless agreed otherwise by all parties involved.
It costs next to nothing (R50) to file a complaint and have a “mediator” – which CSOS refers to as a conciliator – assist the parties to resolve differences, and if that fails, the matter goes to Adjudication 3
So what is the difference between “private” Alternative Dispute Resolution /ADR and the system offered by the Community Schemes Ombud Service – or CSOS?
The CSOS system is the default. Either party can opt for a dispute to be dealt with by CSOS
Private Alternative Dispute Resolution /ADR requires mutual agreement.
The CSOS model generally restricts the time allotted for Mediation/ Conciliation
Having to stop a settlement process midway, often leads to the matter’s being adjudicated too soon.
Adjudication wipes out the prospects of self-determination and better solutions going forward.
Adjudication too early cheats parties of best outcomes and is arguably unethical.
Mediation doesn’t work when time is restricted.
Treating the problem but not the cause/ what is a conflict and what is a dispute?
I define a conflict as disagreement about something that is ongoing and not necessarily “active”.
It’s like a volcanic mountain with most of the danger hidden, bubbling underneath the ground.
I define a dispute as the eruption of a conflict.
A dispute over constant excessive noise for example is almost always only one part of a conflict that has erupted.
Sectional Title owners are mostly neighbours. Relationships are important and taking care of those relationships means “talking to each other”. Disagreements that are ignored generate disputes that erupt.
In this example, the constant excessive noise challenge would probably not need to be remedied as a “dispute” if the underlying conflict was properly dealt with. Without that, fixing the noise problem is a band aid. The conflict will generate another dispute, and another, and another just as volcanoes do.
Mediation is the stage in which you and your opponent get to create your own agreements that you can both live with. Nobody knows the intricacies, details, and complexities that are unique in your situation better than you and your opponent.
There are two ways of meeting difficulties: You alter the difficulties or you alter yourself meeting them
~ Phyllis Bottome – Psychologist, Author and Educator