Article by listed attorney: Fawzia Khan
As a mediator for some years now, I have come to recognize how effective mediation is as a mechanism for resolving a dispute. As a result of this I am always keen to highlight the benefits of mediation to people who are looking for an alternative to litigation in trying to achieve resolution to a dispute. Mediation has been around for centuries and has been used as a dispute resolution mechanism in many cultures and religions, including Islam and the Zulu culture for example. Over the years I have acted as mediator in a range of disputes mostly from couples going through a divorce, but also in a number of matters involving other civil, commercial and labour disputes.
Even though there may still be some hesitation or resistance in considering mediation instead of litigation, I have found that much of this resistance is due simply to lack of information and knowledge about mediation. Many people (some lawyers included) erroneously conclude that mediation is a “soft option” in which a party with a weak case may want to pursue. Many lawyers who were not well versed in mediation were reluctant to offer that choice to their clients. Mediation however is finally taking its rightful place in the arena as an appropriate dispute resolution. Many judges are openly advocating mediation as opposed to litigation especially in divorce matters because of the high legal costs involved in taking a matter to court. In fact in divorce matters an attorney who does not recommend mediation to his or her client now stands at risk of earning the court’s displeasure by facing a punitive costs for vigorously pursuing costly litigation without advising the client of the benefits of mediation.
Mediation is now made compulsory in many acts of legislation. Mediation moves away from the normal adversarial approach where each party approaches their own legal attorney to obtain a winning result for them. In this scenario there will be only one winner. In divorce mediation for example it allows the divorcing couple to take control of planning their own lives. It’s especially beneficial for parents who will need to continue making joint decisions about there children well into the future. The decision-making process learned in mediation can also serve as a model for future communications between parents. A divorcing couple who are pursuing mediation will thus be allowed a greater opportunity to have a result in which they are both happy with the outcome as opposed to having an outcome where there is only one winner and a loser, as would be the case if the matter was decided in court. See also: minimising the stress of divorce.
It goes without saying that one of the successes of mediation lies in choosing the right mediator. Even though many mediators are qualified attorneys, (whose professional training is to engage using our adversarial legal process), when an attorney wears her mediation hat, the rules of engagement changes completely. The mediator acts in a neutral capacity. The mediator is someone who has been trained to deal and manage conflict. I have come across many people who believed that their dispute was simply too bitter, malicious, difficult, you name it, to be resolved through mediation, only to have them change their minds once they submitted their dispute to mediation. Having parties resolve their dispute in ways which suit them rather than have it being imposed arbitrarily by a judicial office such a judge or magistrate or even an arbitrator is yet another benefit. Mediation is an affordable, efficient, viable alternative to litigation and has indeed changed the legal landscape. The mediator is an independent and neutral 3rd party who will facilitate communications and dialogue between the disputants in such a way that it results in a win-win outcome for both disputants. Now who will want to argue with that?
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