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Legal Talk

Legal Talk

Author: Fawzia Khan
Date: 2015-01-30

I'd say the best way to understand and appreciate the benefits of mediation, is to speak to someone who has used the process. Mediation is not only useful to couples facing divorce, but can be used to effectively deal with almost any type of dispute or conflict situation, be it big or small. In fact no case is too complicated to be settled using mediation. Without a doubt all people with whom I've spoken to or had direct contact in mediating have only positive things to say about the benefits both in achieving a win win situation for both parties as well saving of legal and (sometimes emotional) costs. My inbox is full off many heartfelt thank you's from those people for whom I've acted as mediator.


The process of mediation is confidential and its success largely depends on using the right mediator. The mediator must be properly trained, well versed and skilled in the mediation process. The benefit of mediation is that the disputants remain in control of the process, whilst the mediator manages the process. In order to do this effectively, the mediator must know how to manage the conflict between the parties and how to address any power imbalances, which may exist. The mediator must also know how to deal with dead locks and make sure that the parties don't become sidetracked by taking verbal swipes at each other. The mediator must remain objective and not take sides.


There's a saying in the mediation industry, "When you are stuck with 2 options take the 3rd". What this means is that mediators must think creatively and "out of the box" and not limit the options available. The mediator must be a person with effective communication and listening skills, must be ethical and respected and must ensure that he/she creates an environment that is safe for both parties.

The whole process of mediation is conducted in a very structured format. In the intake session, the mediator will explain the framework under which the process will be conducted and an agreement to mediate is signed by the disputing parties, which sets out that the disputants agree to act in good faith, treat each other with respect and dignity, make full disclosure, etc. Thereafter the process of identifying and working through the issues in the dispute commences, often culminating in an agreement of settlement being signed. Mediation usually takes approximately 4-6 sessions, before the dispute can be resolved. However this time period is totally dependent on the parties themselves and how quickly they can reach agreement. The complexity of the issues in dispute is also a determining factor.


Even if that is the case is not settled completely, mediation is seldom wasted. An agreement can be prepared on all settled issues, and the parties can either litigate the remaining issues or take time to think about them and come back to mediation. Once the process of mediation has been completed, the mediator will draft a summary of the mediation for review by each of the parties and their attorney, if any. Both parties are encouraged to obtain independent legal advice during the mediation process, and it's not uncommon for their own lawyer to review the agreement before it is signed.


Know your rights! The Law Desk of Fawzia Khan & Associates. Giving You the Power of Attorney! Email fawzia@thelawdesk.co.za or call 031-5025670 for legal assistance at competitive rates.