Mediation is a voluntary process. This means nobody can force you or your opposing party to participate in the process, nor can anybody force either of you to settle in a mediation session. It is thus very important that all parties to the mediation are committed to the process. Whilst it is true that a wide variety of issues can be resolved by mediation, there are some matters which are not capable of settlement through mediation.
Whether or not a matter is suitable for mediation depends on the particular facts of the matter. There is, unfortunately, no exhaustive list of factors that indicate whether or not a matter is capable of mediation, but a thorough consideration of the following questions should give you a good idea whether your matter is capable of successful mediation.
Question 1 – Are the parties willing to mediate in good faith?
Since mediation is a voluntary process, the mediator wields no power over the parties (nor do they wish to do so). The mediator is merely a tool to assist the parties to create their own win-win scenario. Unfortunately it becomes extremely difficult for the parties to achieve a mutually beneficial outcome if either of the parties does not contribute in good faith to the mediation process. If both parties agree to mediate, however, most mediators have thorough training in how to deal with a recalcitrant mediating party to bring them back to the negotiation table in good faith.
Question 2 – Do the parties have common ground to start from?
The universal starting block in resolving any dispute is establishing whether there is common ground between the disputing parties. People who agree on some things are more likely to agree on other things in a facilitated mediation session.
The common ground can be something very specific, such as the amount payable for maintenance of a minor child every month, or it can be very broad, such as wanting the best interests of the minor child to be upheld and safeguarded.
In my experience as an attorney, and as a mediator, I have noticed that almost all opposing parties in litigation matters are able to find some common ground if they make an effort to do so. Once the parties have established such common ground it is much easier for them to resolve their matter as a whole without resorting to further costly litigation.
Some of the common ground which I believe find application in nearly all matters are the following:
- Not wanting to waste money on litigation costs and lawyers
- Wanting to achieve the best possible outcome for the children involved (regardless of whether such best outcome for the children favours one party over the other)
- Bringing a dispute to a close as quickly as possible
- Avoiding the trauma and conflict associated with litigation.
Question 3 – Are there issues involved which cannot be resolved by mediation?
There are very few issues not capable of resolution by mediation; these do, however, exist and bear mentioning. There are some cases where the intervention of the legal system is unfortunately required. These cases simply cannot be resolved by mediation, and usually come into being where it appears that a crime has been committed and the police need to investigate. In the context of family law and divorce mediation, it is, by way of example, not possible to mediate issues relating to allegations of child abuse.
The following two issues are specifically not capable of mediation:
- Domestic Violence (it is however possible to mediate a divorce where there were domestic violence proceedings)
- Allegations of child abuse (these must be investigated by the SAPS)