The development of commercial mediation in South Africa in view of the experience in Europe, North America and Australia

Doctoral Thesis


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University of Cape Town

Mediation is not a novel process in South Africa. It was used as the primary method of dispute resolution in some traditional pre-indusrial societies. Corporate South Africa is beset by conflict and urgently requires processes such as mediation which dignify and empower participants to tackle commercial conflict at source. Statutes, case law, books, journals and numerous other publications were reviewed in order to assess the relevant issues in the development of commercial mediation and investigate how this process could become a viable alternative to arbitration and the court system in South Africa. Empirical research gleaned from interviews conducted in Cape Town and Johannesubrg reflects the experience of those who currently act as commercial mediators. The ultimate aim of this process is to reach agreement. In light of this extensive jurisprudence that has developed in this area in othe jurisdictions, careful drafting of agreements can go a long away in avoiding enforcement complications. The conversion of a settlement agreement into a judgment or award has proved useful on the small number of occasions when compliance with a settlement appears that it may be an issue. A delicate balance is required between supporting mediation, on the one hand, and not freezing litigation or upholding illegiality, on the other. Absolute rules or uniform statutes, while appearing to offer straightforward rules for an informal process, can in practice prove overreaching or inappropriate. A possible middle path could protect mediation confiddentiality and also allow evidence about the mediation to be admitted in limited curcumstances to be specified by the court on a case-by-case basis.

Includes abstract.

Includes bibliographical references (leaves 288-340).