Mediation, a form of alternative dispute resolution (ADR), is “any method of resolving disputes without litigation”. But, to really understand mediation, you first have to understand alternative dispute resolutions such as litigation, arbitration and negotiation.
Litigation is at the top of the ADR pyramid and is “the process of taking a case to a court of law so judgment can be made”. Litigation can take months or years to resolve. It is also costly, and the parties involved have no control over the outcome.
Arbitration is “the settling of disputes between two parties by an impartial third party”. The parties must agree to arbitration before the dispute occurs, and arrangements surrounding the process of arbitration are usually agreed on in the contract at the beginning of a business relationship. Again, costs are expensive, and it can take months to find a resolution. Like litigation, it is a formal process in a private court, and the parties have no control over the outcome.
Less costly yet effective alternatives
Mediation and negotiation are the less formal and less costly approaches to conflict resolution. Mediation is the intervention in a negotiation or conflict of an acceptable third party with limited or no authoritative decision-making power but who assists the parties in voluntarily reaching a mutually acceptable settlement.
Both parties must agree to the mediation process, immediately implying that both parties are flexible and open for negotiations to reach an agreement. The costs are the least expensive legally binding outcome, and the procedure is usually short and with only a few formalities. The parties have 100% control over the outcome. I like mediation because we involve the parties in finding a unique solution for their own situation.
Finally, there’s negotiation, which is the most common and rudimentary method of conflict resolution. Negotiation can be described as “the deliberation, discussion or conference upon the terms of a proposed agreement”. Negotiations usually take place without expert assistance, and there are little to no costs involved. The amount of time spent to solve the problem is the shortest, and parties have 100% control over the outcome.
The importance of mediation is it allows parties in a dispute to come together and find their own solutions. They have control over their own destiny and can find solutions to fit their lifestyle and situations. Mediation can be used in almost all disputes where both parties are willing to sit around a table and discuss their wants and needs with a third party supporting and guiding them through the process.
Three stages to conflict resolution through mediation
Typically, mediation consists of three stages — before mediation, during mediation and post mediation. Before mediation is the period when the parties have come to a point where they need an external person to help them resolve a dispute stemming from a family problem. During this time, you can almost always assume there’s a breakdown of trust. The chances are that they are not communicating or, if they are communicating, it will be limited and not productive.
The parties will usually display negative body language. This could be subtle, but they will block each other out. If they verbalise this, it could be in the form of accusations. You’ll experience a rise and intensity in the tone of the person’s voice. Universally, we often find that men use stone-walling in mediation to shut the other person out. Interestingly, stone-walling is the body’s way of regulating its own stress hormones. If your stress hormones are high enough, you will shut the other person out completely.
After mediation, there could be a positive or negative outcome. If there’s a positive outcome, one or both parties will hopefully reflect and change how they handle conflict in the future to prevent the same situation from happening again. If the outcome is negative, there will be a continuation of pre-mediation reactions, or the situation may worsen.
The do’s and don’ts of mediation
That said, mediation is not a quick fix or a guarantee that the conflict will be resolved, and the correct processes need to be followed to assist with success. Mediation proceedings, while shorter than other more formal proceedings, can still be emotionally taxing. During mediation, parties are encouraged to listen to each other, remain as honest as possible and be open to feedback. Parties should not lie, blame or point fingers at each other or ignore emotions. Disputes are about how people experience them, not just the substantive matter at hand. People need time to vent.
Although the outcome for mediation depends on the parties involved, mediation allows them to take control of their own situation. It allows them to be actively involved in their own destiny and solutions. That said, while mediation is a great starting point, it cannot resolve situations that need the help of a third party to make decisions on their behalf. In these situations, litigation is the option to consider.
Freeing yourself from the past
In our current situation, individuals have been relooking their relationships, encouraging many to mend what has been broken. During the Covid-19 pandemic and resulting lockdown, people had time to reflect, with many admitting to experiencing heightened feelings of depression and anxiety. More people made use of social science professionals than in the past. Many people joining Die Uitnodiging, a reconciliation reality show on KykNet where I am mediator, cited their reason for entering as realising how precious time and relationships are in the face of the pandemic.
Mediation is a great platform to start and try to resolve disputes. It’s a safe space with an objective third party to guide and support the parties in solving their situation. My advice for anyone wanting to resolve a conflict with a loved one is to take the first step. If you’re scared, make use of an objective third party, but by taking that first step in resolving your situation, you are freeing yourself from the past and can fully focus on your future.