Mediation (1)

Onder invloed van ontwikkelingen in common law-landen als de VS, Australië en Engeland, wordt mediation ook in civil law-landen als Nederland een steeds meer toegepaste vorm van conflictbemiddeling. In een nieuwe reeks blogs, zal Karen Joubert (een al jaren in
Nederland wonende Zuid-Afrikaanse jurist en trainer voor Branch Out, klik hier voor bio), haar licht laten schijnen over deze ontwikkelingen en de speciale rol die “taal” speelt in mediation. Hier haar eerste, inleidende, bijdrage:

Mediation is no longer the poor relation of alternative dispute resolution mechanisms; rather it has become a dynamic and integral part of the legal process worldwide. (For an interesting comparative study of world trends: click here).

The reasons for this are fourfold:

  1. the recognition that rights based dispute resolution is not always the best solution for parties to a dispute – especially true for proponents of the facilitative mediation approach (for a discussion of different mediation approaches, click here).
  2. the costs of litigation;
  3. the time it takes for matters to be finalised due to, inter alia, over burdened courts;
  4. and of course our increasingly complex global world.

Although mediation has been around for a long time, it has only been defined and developed into a real alternative to litigation in the last few decades. As a former legal practitioner from a common law country, South Africa, I had expected civil law countries to be in the forefront of this development, since the inquisitorial nature of the civil law system is less acrimonious than its adversarial common law counterpart. However, the opposite is true and modern mediation models have been driven by developments in common law countries such as The United States, Australia, The United Kingdom, Canada and South Africa.

One of the reasons for this may well be that the winner takes all, no holds barred approach to litigation in common law made it necessary for businesses to look at other forms of dispute resolution in order to speedily resolve disputes, while maintaining crucial business relationships.

Another factor that encouraged the development of mediation in common law countries is judicial activism. Instead of waiting for legislation to regulate mediation, the superior courts used their inherent jurisdiction to stay proceedings and enforce mediation clauses. Legal principles, such as those applicable to no-prejudice settlement negotiations, were used to protect mediation confidentiality. In response to this, legislation was and is still being enacted in these countries to create a legislative framework for mediation.

Despite the many different models and techniques for mediation it is generally accepted that mediation is a form of voluntary assisted negotiation. The development of mediation training, accreditation and incorporation into the legal system is what defines modern mediation today, although the voluntary aspect is increasingly under threat due to trends towards so-called court aligned mediations, which compel mediation in suitable cases and the risk of adverse cost orders should a party unreasonably refuse to mediate  (for more reading: click here).

A number of developments in the Netherlands support the global trend towards mediation, the most recent being the incorporation of the EU Directive on mediation in 2012 and the three mediation bills pending in parliament. In a next blog I will consider these developments and the importance of language in mediation.

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