Part VI: Advantages and Benefits of Mediation
PART SIX: COURT-ANNEXED MEDIATION IN LESOTHO
Advantages and Benefits of Mediation
The Court-Annexed Mediation (CAM) Programme is one of the new initiatives that has been introduced in the High Court of Lesotho under the Civil Legal Reform Project (CLRP), with the support of the Millennium Challenge Account – Lesotho (MCA-Lesotho) and the International Law Institute – African Centre for Legal Excellence (ILI-ACLE).
The last article discussed a feature Confidentiality: which makes Mediation extremely attractive and desirable. People find in Mediation the ability to keep confidential their business, company, family and personal secrets from the prying eyes and eager ears of the public. That is a critical advantage of Mediation.
The present article adds other Advantages and Benefits of Mediation. There are quite a bundle. In the brief space of this article, however, we will deal with only some of the most important of them all – and in no particular order of priority.
First,Mediation is by far faster than litigation. The Mediation process lasts a maximum of only 30 days (extendable only for very compelling reasons). The actual hearing sessions last only 2 days or less. Litigation, on the average, takes 2 – 3 years. The speed in mediation is based on deliberate policy and law. But it is also a function of the process itself. Mediation does not deal in the elaborate documentation and desperate technicalities ingrained in the classical litigation procedure. Instead, Mediation thrives on the simplicity, informality and alacrity of process and procedure.
Second, because of its speed, Mediation yields abundant savings in time, expense and relations. The attendant expenses (of lawyers’ costs, witness’ fees, travel, accommodation and miscellaneous expenses) are commensurately lower than the comparable expenses of litigation. The bottom line of all this is expenses saved. But an even more salient saving shows up at the end of a successful mediation, when the once antagonistic adversaries break their fists into open palms to congratulate each other’s success in the triumphant settlement of their dispute. This shaking of hands is symptomatic of the business or family relationship saved, and the continuation of former ties. Litigation perpetuates the Parties’ differences, and ultimately destroys their relationships – when only one of them finally wins the case (most likely on appeal)! Mediation leads all the Parties to a win-win situation.
Third, litigation being bitterly adversarial, time-wasting, money-consuming, and intimidating (with proceedings conducted in the opaque mysteries of the judicial shrine, steeped in the harrowing glare of the public eye), leads to a stressful process – at the end of which one of the Parties is destined to lose everything. Litigation then, is a stressful gamble!
As against all that, Mediation is informal, transparent and is conducted before a trusted, neutral third party having no accoutrements of the judicial intimidation and mystique; nor, indeed, any authority to pass judgment in the matter. It is a user-friendly environment in which the Party is boss.
Fourth, is the phenomenon of Empowerment of the Parties. In mediation, the Parties ‘choose’ their own court and judge (the Mediator). Even in Court-Annexed Mediation, the Parties have an implicit right to object to a particular Mediator assigned them by the Court, until they mutually agree one, of their own liking, from the Court’s many mediators. Also, the Parties choose their own law, since they agree to negotiate on their own terms – unhindered by strictures of legal technicalities, procedure and practice. Similarly, the Parties, are their own premier spokespersons (with their counsel essentially taking an advisory role). Likewise, it is the Parties’ own freely agreed terms that will drive the proceedings and dictate the decision-making. What concessions they make, what admissions they profer, and what positions they prefer, will ultimately coalesce in their own mutual settlement of the dispute. To that extent then, the Parties are the ones who write their own judgment in the case.
All these elements of Mediation are a notable Empowerment of the Parties.
Fifth, and arguably most importantly, is the Advantage of a win-win situation for every Party in Mediation. Given that Mediation is a negotiation of terms between Parties, its end result (the mutual settlement agreement of the dispute), mirrors every Party’s give-and-take; freely taken and received by the other Party. As such, each Party wins some, and loses some – to the end that all may attain a win-win position. It is for this reason that rarely, if ever, is there an appeal of a mediated case: for there is no ‘aggrieved’ Party.
In conclusion, Mediation offers the disputing Parties a long list of Advantages and Benefits, over and above the classical litigation.
For more information please contact:
The Office of the Registrar
Palace of Justice
P. O. Box 90