Mediation is the process by which a neutral third party helps others to negotiate a solution to a problem. It is the broad term used to describe the intervention of third parties in the dispute resolution process.

A mediator has no authority to make a binding decision for the parties. Rather, he is regarded as the process expert supplying skills & techniques to guide the parties.

Mediation is consensual and can come in various forms. You can have mediation for commercial and labour disputes, or family disputes.

Mediation can be very useful in family law and courts have begun recommending mediation when dealing with divorces. Family law mediation generally devotes a lot of time to non-legal emotional and relationship issues. Mediation has aided in the process of dealing with the sensitive issues such as custody, property division and future relationships and has proved beneficial in these areas.

It is the view that parties are more likely to abide by agreements that they have worked out between themselves, and the mediator being the facilitator of discussion and problem-solving can help in bringing quick resolution to issues between parties.

Mediation is a very versatile tool, and just about any dispute can be mediated; however, there are some exceptions such as:

serious criminal offences (here the parties might prefer a sentence rather than a solution)

constitutional matters such as the enforcement of fundamental rights that require the court system to truly have effect, e.g. judicial review

where there is extreme bitterness, then the basic requirement of mediation would not apply

where the parties are not willing to deal with each other in good faith.

Mediation is, however, being applied more often in minor criminal offences and in some cases provides for settlement by a mediator and imposing on the accused person's obligations, such as:

(a) doing unpaid work for the benefit of the other

(b) paying compensation to the other

(c) participating in an education or rehabilitation programme.

Advantages of Mediation

improves the quality of justice by shortening the court docket

the informality of mediation is an advantage. There are no requirements to file a claim and it enables the parties to speak freely and without fear of damaging their case

savings in time and money (litigation is time consuming and costly)

increases the likelihood of maintenance of the relationship between the parties

there is less risk involved in opting for mediation

confidentiality

free choice of mediator

even where no agreement is reached there is an advantage in having people clarify their issues.

Disadvantages of Mediation

the voluntary nature of the process means that if one party is unwilling to compromise then an agreement cannot be reached.

either party can withdraw at any time

an unsuccessful mediation carries serious consequences such as delay in resolving the dispute

greater cost if litigation is resorted to

from a legal perspective: (1) mediation lacks procedural safeguards available in the court process (2) mediation does not adequately protect the legal rights of the party.

Mediation, however, is being resorted to in many instances and has boasted a track record of having very favourable results.