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Give mediation a chance

Give mediation a chance

Author: Fawzia Khan
Date: 2018-04-06

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. After trying mediation and seeing the positive results of this type of dispute resolution, they often end up being my biggest champions of mediations, telling everyone with a dispute to give mediation a chance. The truth is that there's a great benefit to resolving one's dispute where you played a part in structuring the outcome, rather than to have it imposed arbitrarily on by a judge or magistrate, or arbitrator. In the litigation scenario, which is an adversarial approach, there will be only one winner. Mediation allows for a win-win outcome for both disputants. Now who will want to argue with that

Mediation is an affordable, efficient and viable alternative to litigation. There are a number of legislations where mediation is now made compulsory. Mediation has in fact been around for centuries. It exists in a number of cultures and religions. 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. Mediation 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.

Much of the resistance to mediation is due simply to lack of knowledge about what mediation is. Many people, including some uninformed lawyers incorrectly believe that mediation is a "soft option", which must only be considered if you have a weak case. Nothing could be further from the truth. As a result of this many lawyers who are not well versed in mediation are almost always reluctant to offer that choice to their clients. Even they need to be educated around the way the litigation landscape is set to change. Mediation has certainly changed the way attorneys do business.

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 their 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. It goes without saying that one of the successes of mediation lies in choosing the right mediator. If the dispute for some inexplicable reason cannot be resolved through mediation, remember whatever was said during the mediation process always remain confidential and can never be used against you in court. Go give mediation a chance. You have nothing to lose and much to gain.

Email me at fawzia@thelawdesk.co.za for legal assistance at competitive rates. The Law Desk of Fawzia Khan & Associates. Giving YOU the Power of Attorney!