Mediation as an ADR process

According to Online Etymology Dictionary373 _{the term mediation is traceable to the 14}th

century Medieval Latin term mediator which means “a division in the middle.” In that light mediation is defined to mean “the process of bringing about agreement or reconciliation between opponents in a dispute. Mediation implies deliberation that

results in solutions that may or may not be accepted by the contending parties.”374_In

mediation parties make use of an independent third party to assist them in coming to

an agreement375_{but the third party has no decision making power and the aim is to}

direct and assist the disputants to find their own mutually and voluntarily reached acceptable solution.376 _{This is quite different from a judge or arbitrator in that in the}

370 _{LawsHelf https://lawshelf.com/videos/entry/alternative-dispute-resolution-methods-negotiation Date}

of use: 27 November 2018

371 _Ibid 372 _Ibid

373 _{Online Etymology Dictionary https://www.dictionary.com/browse/mediation Date of use: 27}

November 2018

374 _{Online Etymology Dictionary https://www.dictionary.com/browse/mediation Date of use: 27}

November 2018, see also Patelia and Chicktay (2014) 16

375 _{Wiese (2016) 5 See also Coetzee and Schreuder (2010) 470}

376 _{Coetzee and Schreuder (2010) 470 “The primary objective is to assist the parties to settle their}

dispute, but mediators also endeavour to:

• remove specific obstacles that are hampering progress; • reduce tension between the parties;

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case of a mediator s/he is denied the power to impose any solution on the disputants but instead, the mediator ought to assist them shape out a solutions that qualifies as

the mutually acceptable resolution in the best interests of the parties.377

Radford and Glaser378argue that in the ‘psychology of mediation perspective, the crux

of the mediation process revolves around the art of altering the ‘perceptual realities’ of

the disputants.379_{Through a carefully orchestrated process, the mediator intervenes in}

the dispute system, and redirects energy by building relationships with each of the parties in dispute and by assisting them to assess and restructure their perceptions of

the dispute and how the mutual problem can be resolved.380 _{Fundamental to the whole}

process is the perceived credibility of the mediator and the trust that can be harnessed

into the dispute system. Those381 _{that support mediation as an ADR approach seem}

to suggest that it is often quicker, easier, less expensive, and can provide a more

complete solution than going to court382 _{though evidence to this is scant especially in}

Botswana, South Africa and Zimbabwe’s labour dispute regimes. In fact mediation seems to enjoy preference in literature as one of the major constituent elements of

ADR.383 _{Ordinarily it seems to be the preferred approach before arbitration and}

litigation are considered.384 _{The Canadian labour unions have a special preference for}

mediation for the following reasons:385_{it is considered to be fairly cheaper compared}

to arbitration; it affords the union and the employer control over the outcome than does arbitration and it is considered as a useful way of getting rid of disputes the unions are

• seek sufficient movement by the parties to allow the parties to negotiate further as far as possible on their own;

• broaden the search for potential solutions; • train parties in negotiation skills;

• improve communication and common understanding of issues; • exert direct influence on the dispute; and

• prepare the parties to accept the consequences of their own choices and actions.

377 _{Coetzee and Schreuder (2010) 470}

378 _{Radford and Glaser (1993:72) in Coetzee and Schreuder (2010) 470} 379 _Ibid

380 _{Coetzee and Schreuder (2010) 470}

381 _{Bosch et al. (2004) 7, see also Patelia and Chicktay (2014) 30}

382 _{FindLaw https://adr.findlaw.com/mediation/what-are-the-disadvantages-of-mediation.html Date of}

use: 27 November 2018

383 _{Zahorka http://www.libertas-institut.com/de/PDF/Mediation.pdf Date of use: 8 March 2016} 384 _Ibid

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reluctant to fight over more efficiently and cost-effectively: in cases where persistent

or militant union members declining to accept that their case is a lost cause.386

However, mediation is saddled with its own inadequacies that make it weak in achieving efficacy as a dispute resolution mechanism. Mediation is not an ideal approach to extract truth of the matter in dispute from the parties which is different from a courtroom setting whereat lawyers have several tools at their disposal to get

people to testify and produce evidence not easily accessible to mediators.387_Further,

being an informal process has no formal rules, unlike the courtroom procedure it is

unable to keep things fair to both parties.388 _{For instance, if one of the parties to the}

dispute is timid and the other is loud and aggressive, the timid one runs the risk of losing some of what is legally owed it. Though mediators may have the skills required to restore balance there is a limit to what they can do in those circumstances as

aforementioned.389 _{In abusive relationships experts believe mediation might provide}

just another way for the abuser to harm the victim inhibiting the latter’s ability to assert

their position in such informal settings.390_{In the event that mediation fails and parties}

are unable to reach agreement on the dispute parties have to resort back to the time consuming and expensive process of trial or other process after wasting time and

money in mediation.391_{Given the above demerits of mediation it is evident that it may}

not be appropriate for all circumstances especially those where an award has to be reached such as dismissal disputes. Mediation may be appropriate in circumstances where the parties in dispute are involved in an ongoing relationship and have to deal with each other after the dispute has been settled or even after failure. The next section considers conciliation as an ADR process.