Mediation vs. Litigation

Have you found yourself in the middle of conflict in the workplace, facing unfair dismissal or between yourself and a business partner who you no longer seem to see eye to eye with? If so, you might also be dreading taking legal action, worried about what it will cost you and whether or not you’ll come out the other end successful. Well, litigation (the process of taking legal action) does not have to be the first step.

Have you ever considered mediation? Mediation, according to Oxford, “is the intervention in a dispute in order to resolve it”. Essentially, your mediator would be an independent person appointed to settle a dispute. The mediation is off the record and without prejudice to all parties. It is confidential.

Mediation is an under-utilised resource in all areas of litigation and, indeed, in all spheres of conflict and disputes. Litigation is inevitably protracted, expensive and traumatic. A successful mediation resolves a dispute quickly, inexpensively and eliminates hostility that is inherent in litigation. South African lawyers are largely unschooled and inexperienced in mediation skills. I am of the view that - in the future - mediation will be incorporated as a compulsory aspect of litigation in South African legal practice.

I urge all parties to any dispute as well as legal practitioners to consider the real advantages and benefits of mediation before embarking on costly and time-consuming litigation. A successful mediation results in a very satisfied client and by corollary leads to minimal animosity between all parties, which preserves ongoing relationships.

A disadvantage of litigation is that the dispute is decided by a third party whereas the conclusion of a successful mediation is achieved by the parties themselves. The parties are able to retain full control over the entire process and the result. The mediator acts as an impartial guide in assisting the parties to achieve the most beneficial outcome. It is ironic that more often than not, protracted and expensive litigation is concluded by way of a settlement on the steps of the court – a settlement that could have been achieved at the beginning of the conflict through mediation.