Mediation: The Good, the Bad and the Honest Truth
By Peter van Niekerk
Mediation has been around for many years, yet it still meets resistance. This article explores why that is, and what makes mediation work. My aim is to try to persuade litigants, practitioners, and anyone who finds themselves tangled in a dispute that mediation deserves a far warmer welcome than it often receives, and why it sometimes does not get one.
When people ask me how to get the most out of mediation, my refrain is always:
- Understand what mediation really is. It is a flexible, confidential conversation guided by a neutral third party. The key word is flexibility. You are not chained to your pleadings. You are free to look sideways, to invent a solution a court could never order, to trade something you do not value for something the other side does. A judge hands down a verdict. Mediation lets the parties write their own ending.
- The attitude that makes settlement possible. A genuine willingness to find a resolution improves the odds of one enormously. The opposite is just as true - arrive determined to dig in, and you will make settlement almost impossible, no matter how skilled everyone else in the room may be. A positive attitude is vital to the success of the mediation.
My experience is that there are very few disputes that genuinely cannot be settled, and that many of the ones that look hopeless are simply waiting for the right conditions.
The part that gets overlooked: the human element
The textbook advantages of mediation - speed, cost, confidentiality - are well rehearsed. What seasoned practitioners sometimes still miss is that much of mediation is not necessarily dealing with the law, and displaying emotional intelligence and practical sense can be as important.
A dispute is rarely only about money, clauses or liability. Underneath it sits ego, fear, a sense of having been wronged, a relationship that has soured, sometimes simply the need to be heard. The single most important thing a mediator must do is read the room, noticing tone, timing, silence, body language and the moment when a party stops listening and starts defending. It means knowing when to press, when to pause, when to separate the parties and when to bring them back together.
Partial settlement is still a real result
A full settlement is not the only measure of success. First prize is obviously resolving the whole dispute, but that is not always within reach. This is less about a lack of mediator skill or appetite from the parties, and more about the fact that some disputes have many tangled layers. I have mediated plenty of these and settled some of the issues rather than all of them. Even that is a real win – it curtails the duration of the eventual trial, cuts the cost, and very often clears the path to a complete settlement further down the line. Progress counts, even when it is partial.
Clearing up a few myths
- “Mediation is soft, a sign of weakness or indecision.” Quite the opposite is true. Choosing to resolve a matter is not a white flag, it is a strategic decision.
- “Mediation is expensive.” A successful mediation saves far more than the mediator’s fee. It also saves something practitioners undervalue - management time, and the sheer emotional toll that drawn-out litigation inflicts on real people.
- “Lawyers get in the way.” In my view, a good lawyer can be enormously helpful in advising on realistic outcomes, reality-testing a stubborn client, and helping shape a durable agreement.
- “Mediators may be biased.” A mediator has no decision-making powers to decide anything, and either party can walk away at any moment. It is accordingly difficult to see how real bias could take hold under those circumstances. The concern is almost always a perception rather than a reality, though a skilled mediator takes even the perception seriously and works to dispel it.
Why mediations fail
Mediations usually fail for predictable reasons.
- Lack of preparation. Both the parties and their lawyers are guilty here. Walking in cold and hoping for the best is not a strategy.
- No real mandate to settle. If one of the decision makers in the room does not have the authority needed to settle the dispute, the day is lost before it begins. This is a recurring problem in RAF matters
- No genuine desire to settle. Sometimes mediation is treated as a task on a checklist that must be ticked off in order to obtain a trial date. Practitioners go through the motions without the willingness to advance the case. In my experience, this shows up often in family law disputes, where emotion can quietly override good sense.
- Self-interest. Sometimes the obstacle is not the parties at all, but the self-interest of a minority of lawyers. Litigation is slow, and slow can be profitable. I am not suggesting that most practitioners think this way. They do not. But it would be dishonest to pretend that the incentive is never there. A client is entitled to ask whether delay is serving the client’s interests or the interests of the person billing for the delay.
Mediation is not magic, and it is not suitable for every dispute. But when it is approached with preparation, an open mind, a real mandate, and a mediator who can read people as well as papers, it remains one of the most powerful and humane tools we have for parties in conflict. Used honestly, it serves the people who matter most, the parties themselves.
Happy mediating.
