Jacob Moreno – one of the 20th century’s foremost advocates of human interaction – defined his fellow human beings as “a relational being.”  Whilst relationships – whether work, personal, or professional – are generally affirming and rewarding; they are also susceptible to conflict and disputes, which if unresolved, have the potential to be detrimental to the relationship.

With Natasha Gerber Industrial Psychologists’ experience and expertise in human and organisational behaviour, as well as in personal injury matters; we are distinctively positioned to provide mediation services, which offer the opportunity for the early and effective resolution of disputes in a mutually beneficial manner by means of a consensus-seeking process.

What is mediation?

Mediation is a voluntary and flexible process in which a neutral, trained impartial third party (the mediator) assists the parties to reach a mutually satisfactory resolution of the dispute. Under conditions of strict confidentiality and by facilitating discussions between the parties to the dispute;  the mediator assists the parties in isolating the issues in dispute, generating options for resolution of the dispute and considering  alternatives in order to reach an agreed settlement of the dispute, either in full or in part.

Internationally, mediation has proved to be a cost-effective and expedited process of accessing justice outside of litigation and court processes. Whilst mediation is not new in South Africa and has been used extensively the field of labour law; more recently, the courts seek to encourage litigants to refer their disputes to mediation before proceeding with litigation “towards achieving the delivery of accessible and quality justice for all”.

Whilst there are various mediation styles, Natasha Gerber Industrial Psychologists generally employs facilitative mediation, whereby the mediator establishes and manages a process of exploring the perspectives of the various parties, and in doing so enables (or facilitates) the parties to arrive at a mutually satisfying outcome. During facilitative mediation, the parties are assisted to craft their own unique solution based on information and understanding, therefore, the parties determine the outcome of the mediation.

Why choose mediation?

Speed of resolution

It is known that the number of matters on the court roll exceed the resources of the court, often results in delays in allocating trial dates and postponements at Court. Conversely, mediation can be set up fairly quickly, and may take place within days of the process being agreed and the required documentation becoming available.

Costs

The cost of mediation is considerably less than the average cost in time and money for the litigation of a dispute in court.

Significant savings in legal costs will invariably follow mediation (and settlement) at an early stage of the dispute. In addition, when considering the absence of court formalities and procedures during the mediation process, mediation and settlement at an early stage of the dispute allows for savings in productivity / time costs, relationship costs, emotional costs and reputational costs.

Confidentiality

Confidentiality is central to the mediation process itself (i.e. the content of the discussions between the parties to the mediation remains private and confidential between those parties) and between the parties and the mediator (i.e. the mediator does not share any information obtained in a private session with one party with the other party to the mediation, unless express permission to share specific information has been obtained from the party divulging the information).

All parties to the mediation are bound by strict confidentiality obligations so as to promote a safe environment where parties can be encouraged to make a full and frank disclosure, which provides opportunities for identifying options for the resolution of the dispute and / or exploring opportunities.

Voluntary and without prejudice

Whilst mediation would ideally be initiated by both parties freely deciding to engage in the mediation process; the initiation may also by compelled by a contractual clause or more recently, court ordered. Nevertheless, the continued participation in the mediation process, as well as the reaching (and agreeing to) a mutually beneficial settlement remains voluntary. Thus, the success of the mediation process is largely dependent on the parties participating in good faith and making a genuine effort to negotiate a resolution.

As mediation (or an agreement to mediate) does not preclude any disputant to resort to other means (e.g. litigation process); if acceptable terms do not emerge, the path to trial can be re-joined, and any information disclosed, admission, concession or offer made in the course of mediation is inadmissible as evidence in any pending or subsequent legal proceedings.

Party autonomy and opportunity for creative solutions

Whilst the mediator facilitates the process to allow parties to come to a mutually acceptable agreement by facilitating negotiation, assisting parties in generating ideas, and moreover, assisting the parties to the mediation to make their own decisions about the resolution of the dispute; the mediator only controls the process of mediation, and does not impose express views on the merits of the case nor suggest outcomes. The aforementioned therefore implies that the parties to the mediation determine the issues raised for discussion, and remain in control of the decision whether or not to settle and on what terms.

Thus, mediation allows for the opportunity to generate (and effect) solutions for mutual gain (win-win) that address interests and needs beyond those outcomes which courts have the power to deliver (for example, an acknowledgement of an unanticipated and undesirable outcome). Similarly, in the Rules Regulating the conduct of Proceedings of the Magistrates’ Courts of South Africa, it is considered that the main purposes of mediation are to (amongst others) “promote restorative justice…provide litigants or potential litigants with solutions to the dispute, which are beyond the scope and powers of judicial officers”.

Preservation of relationships

The process of facilitating productive discussions in an attempt to reach a mutually acceptable resolution to a dispute also provides the potential for bridging distrust, poor communication, and addressing feelings of being aggrieved and / or disempowered. Thus, mediation provides the opportunity for preserving relationships and / or minimise the deterioration of relationship to so as for the parties to continue with their business- or employment relationship.

Which type of disputes do we mediate?

Both mediators at Natasha Gerber Industrial Psychologists are Conflict Dynamics accredited commercial mediators, and are also registered at the South African Medico-Legal Association (SAMLA) as Medical Mediators; whilst Natasha Gerber is also a registered Medico-Legal Practitioner with SAMLA. Coupled with our experience and expertise in the Human Resource / Human Capital domain and Industrial / Organisational Psychology domain; Natasha Gerber Industrial Psychologists can assist clients with mediations for:

  • Personal injury (including, but not limited to Road Accident Fund matters);
  • Medical- or clinical negligence;
  • Workplace / employment disputes;
  • Contractual disputes.

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