The mending nature of mandatory mediation — a personal professional perspective 

If one were to take a poll on what it is that people seek when wanting justice, references to resolution, restoration of balance and making things right are likely to be among the common denominators.  

While there are many different outcomes in achieving justice, ultimately the aim is to ensure fairness and to grant individuals what they deserve within the context of each unique set of circumstances.  

Justice may be said to have been achieved when a perceived imbalance is addressed through a process which ensures that all individuals are treated fairly, with respect and recognition of their human dignity.

It does not take any great stretch of the imagination to appreciate that when justice is delayed – through prolonged processes; inaccessibility of courts due to long lead times on trial dates; too few judges to realistically satisfy the demand; or any other reason impacting on the timely access to remedies of resolution – it may be experienced as essentially being denied. 

Lengthy delays in access to justice do very little to enhance a sense of fairness, respect or dignity, but rather they run the risk of creating stress, anxiety, frustration, anger, financial strain and limited means by which to obtain much-needed services, among other negative consequences. The latter may in turn lead to further difficulties related to personal health, compounding all of the negative features mentioned above. 

There is also the risk of increasing levels of public distrust in the legal process when it is experienced as slow and inefficient.

Given the well-documented unmanageable caseload in the Gauteng Division of the High Court and the “unacceptable and intolerable’’ state of affairs with regard to new trial dates only being available in 2031, the directive introducing mandatory mediation – as presented by Judge President Dunstan Mlambo – should be welcomed.  

The question most frequently asked by those with whom I consult as an expert witness in medico-legal matters and as a claims specialist in life insurance contractual disputes is “how long will this take”, irrespective of the specifics of the issue in hand. It is an impossible question to answer given the unknowns around the availability of court dates, even for those in the legal fraternity; the slow processes of disputed claims management within life offices and the protracted periods of time it takes to obtain a determination through the office of the National Financial Ombud Scheme. And then there are even further delays if appeal processes are involved. 

What is known, however, is that the swift and potentially final nature of mediation can positively address these concerns, enabling the opportunity for resolution sooner rather than later; a reality those who have actively been mediating for some time will openly share.

Parallel with the above-mentioned question is the often-expressed desire to be heard in a way the impact of the trauma suffered, individual difficulties and personal challenges experienced are appreciated and understood outside of the issue of compensation or contractual lability on their own.  

It is not uncommon to be informed that: “All I really want is for the other party to understand my situation / hear my point of view / apologise / recognise what the evidence practically means in terms of the contract / cover the reasonable costs related to my loss or reach finality so that I can get on with my life.”  

I recall a medical negligence matter in which the husband of the affected party commented that the choice to litigate was less about the compensation they felt was deserved, than it was about “the other side” hearing how much the incident had negatively impacted their lives. He added that one of the greatest outcomes of the matter would be to have the medical practitioner concerned apologise and reassure them that what had occurred could not happen again.  

Although the quantum of the claim was obviously important, his desire to feel heard, acknowledged and understood in reaching an agreement was of greater importance than focusing on the damages. This case may have been better served by being settled through mediation, rather than awaiting a trial many years down the line. Eight years passed from the date of the incident until the date of settlement of the claim.

Mediation, by its very nature, focuses on parties being guided by their underlying interests, needs and concerns in creating a solution – a settlement – that suits both parties. It is not so much about the familiar legal approach of defending positions, interrogating facts and arguing points than it is about finding common ground on which to build an agreement. It is a facilitated process by a neutral party well-versed in specific skills of communication that encourages collaboration through constructive dialogue. Getting to a “win-win” outcome is what adept mediators strive for and achieve.

One must be mindful to not confuse the seemingly “softer” approach to reaching resolution through mediation, with the assumption that the role of a mediator is any less demanding of professional training, skill and experience than other forms of dispute resolution. There is an entire protocol to be followed in this regard, the details of which can be found online.

Furthermore, it must also be noted that engaging in mediation only pauses the litigation process in circumstances where it fails. It is not a replacement for litigation, where needed. It is merely a cost- and time-effective means of alternative dispute resolution aimed at expediting settlement to enable the courts to focus on cases that are deemed to warrant judicial attention.  

The wording of the directive makes it clear that mediation does not jeopardise the right to access to the courts, but rather seeks to make sure that trials are more appropriately allocated to those that “genuinely deserve the attention of a judge” according to Judge Mlambo. The fear that the process interferes with access to courts, therefore, seems to be somewhat misplaced, particularly in the event of successful mediations freeing up court time for better-suited matters.

Where concerns regarding the constitutionality of implementing mandatory mediation have been raised it would be helpful to engage with the opinion of the highly skilled mediators John Brand and Chris Todd. 

At the end of the day, my personal professional experience has been that when a process enables constructive communication, encourages listening so as to feel understood and opens a space to discover a mutually acceptable solution without lengthy delays, there is a sense of progress, achievement and justice. Balance is restored in the most positive way possible, irrespective of any need to compromise; human dignity is intact; and that which felt broken has benefited from being mended.

In the recent words of Věra Jourová, who served as vice-president of the European Commission for Values and Transparency from 2019 to 2024 and as the European Commissioner for Justice, Consumers and Gender Equality from 2014 to 2019: “Justice is not a luxury. It is something we need [like] air and clean water.” DM

Elise Burns-Hoffman is a specialist claims consultant, occupational therapist, certified mediator and personal business coach.