By Michael Crystal and Shelly Mackay-Davidson

Mediation has been a valuable tool for several years in the resolution of disputes in the family law and commercial law arenas. The court system is now following this trend, and the magistrates’ court rules have recently been supplemented with mediation rules, beginning with r 74. For now, mediation only exists as a pilot project at certain courts, but if all goes well it will soon be rolled out across the country. This article will explore the role of the mediator in mediation proceedings.

Rule 80 deals with the role and functions of the mediator. At the beginning of the mediation, the mediator must inform the parties of the following:

‘(a) the purposes of mediation and its objective to facilitate settlement between the parties;

(b) the facilitative role of the mediator as an impartial mediator who may not make any decisions of fact or law and who may not determine the credibility of any person participating in the mediation;

(c) the inquisitorial nature of the mediation proceedings;

(d) the rules applicable to the mediation session;

(e) all discussions and disclosures, whether oral or written, made during mediation are confidential and inadmissible as evidence in any court, tribunal or other forum, unless the discussions and disclosures are recorded in a settlement agreement signed by the parties, or are otherwise discoverable in terms of the rules of court, or in terms of any other law;

(h) the mediator will assist to draft a settlement agreement if the dispute is resolved; and

(i) if the dispute is not resolved, the mediator will refer the dispute back to the clerk or registrar of the court, informing him or her that the dispute could not be resolved.’

It is clear that r 80 takes a pragmatic approach, and is focused on the information that the mediator should convey to the parties. A more theoretical question arises as to how much the mediator should intervene in the proceedings? I submit that when r 80 is applied in practice, the considerations that follow should be taken into account.

There are arguments in favour of a more interventionist mediator (JG Mowatt ‘The high price of cheap adjudication’ (1992) 109 SALJ 77). How is a mediator expected to deal with a party who fails to attend an interview after having agreed to do so, and therefore, hampers the administration of justice? Should the mediator not have a role similar to that of a judge so that he or she can ensure that there are consequences for such a party’s actions?

There are, however, arguments against a ‘judge-like’ mediator (Mowatt at 81 – 84):

First, the mediator’s primary function is to facilitate an agreed settlement between the parties rather than to impose a solution on them. So, he or she is not an arbitrator or judge; does not decide issues for the parties; does not determine whose version of the facts is ‘true’; and is not concerned with determining right from wrong. The mediator should endeavour to resolve issues by ‘engaging disputants as joint problem-solvers’ and assisting them in the negotiation process.

Secondly, mediation as a process relies heavily on a non-hierarchical relationship between the mediator and the parties to the dispute. Inherent in this is the fact that a mediator should be representative of the larger community, and should not act as a judge lording over the disputants from above.

Thirdly, although mediation should take into account the values and norms of society, it is generally aimed at establishing what is ‘right’ for the parties, as opposed to what may be considered ‘just’ in terms of the prevailing values and laws. Furthermore, the psychological and emotional approach that mediation adopts towards disputants and their disputes means that the procedural technicalities of normal court litigation are downplayed.

Fourthly, viewing a mediator as unobtrusive and non-interventionist assumes that there is a rough equality between the disputants. This is rarely the situation in practice. The parties to a dispute are usually on unequal footing when it comes to social standing, bargaining power, finances, emotions, and physical power (S Moodley ‘Mediation – the increasing necessity of incorporating cultural values and systems of empowerment’ (1994) 27 The Comparative and International Law Journal of Southern Africa 44). If there is inequality between the parties, it may very well be that a proper outcome will not be achieved if the mediator remains completely at bay.

So it appears that it is undesirable for mediators to be granted judicial powers on a general level. This is a reflection of the voluntary nature of the mediation process. I submit, however, that the mediator should be able to exercise some powers in particular situations, for example, where a party fails to attend a mediation meeting after having agreed to do so. Allowing the mediator to grant judgment for the plaintiff in such a situation would be too extreme an approach. Perhaps the rules should enable the mediator to make a costs order against the party who fails to attend. Alternatively, if the matter reaches the litigation stage, the magistrate could take the failure to attend mediation into account when awarding costs.

A sensible approach to the role of the mediator in redressing the balance of power between parties would be as follows: Within the mediation process itself, it is assumed that there is a degree of equality between the parties, and each party is expected to allow the other to speak. The parties have essentially consented to relinquishing some of the control over the outcome to the mediator. The important thing here is to determine the extent of the control that passes to the mediator (JG Mowatt ‘Some thoughts on mediation’ (1988) 105 SALJ 727). The mediator should be careful not to ‘eclipse’ the parties, or the essential nature of the mediation process will be lost. However, he or she must assume enough control to achieve a balance of power and, ideally, an equitable outcome.

It is clear that there is a fine balancing act that must take place, and this skill will be fine-tuned by mediators as they gain more experience.

Michael Crystal LLB (UCT) is a candidate attorney at Bannister Legal in Cape Town and Shelly Mackay-Davidson BA  Laws (UCT) Diploma Company Law (Stell) Certificate in IT and Internet law (UCT) is an attorney at Bannister Legal in Cape Town.

This article was first published in De Rebus in 2015 (Dec) DR 36.