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Mediation is an old concept. From the first time someone said, “Let’s talk about it,” people have tried to resolve differences through one form of mediation or another.
The truth is that we all face conflict of various forms throughout our lives. It can be work-related, relationship-related, or even trauma-related. There are, of course, many ways for people to deal with conflict, from the option of simply ignoring it, to the other end of the spectrum where people jump into tanks and go to other people’s villages and set them on fire.
So it seems that the need for some type of mediation has always existed, but there have not always been easily accessible forums or service providers that could take on this role.
Mediation in South Africa
The CCMA has long been the leading and perhaps best-known mediation forum in South Africa. It has helped countless companies and people avoid lengthy and expensive legal proceedings. It is a good example of what can be done in the world of mediation.
There are of course many other examples, but the purpose is often the same: to find solutions for the benefit of all involved, to help keep costs down and to find a quick solution. When you consider that it can take around three years to actually hear many legal cases and the cost of attorneys and attorneys, the benefits of mediation become pretty obvious.
“The CCMA has long been the leading and perhaps best-known mediation forum in South Africa.”
Debt counselors are sensitive to the mediation aspect as there is a history of lenders who have previously tried to bypass the debt review process by establishing the National Debt Mediation Association (NDMA). On their website, debt counseling is still sometimes misspelled after all these years (sad).
There are also countless so-called “debt brokerage” scams carried out by people across the country that have left consumers penniless and unprotected time and again. Many scammers offer debt screening services outside of the protection of the NCA and outside the supervision of the National Credit Regulator (NCR). Hundreds of thousands of people were burned and enforcement was weak in that regard. This is not a true mediation.
The NCA & Mediation
In particular, the National Credit Act (NCA) addressed the concept of mediation for some types of loan dispute resolution (not the settlement of debts – which would be a debt review – but the settlement of issues related to credit matters). It resulted in the creation of Alternative dispute resolution (a type of NCA-related mediation). Professionals have to register and pay high fees to be part of the industry.
“With the National Credit Act … the creation of an alternative dispute resolution (a type of NCA-related mediation) was introduced.”
The aim is not to compete with the review of debt and the specific role of debt counselors, but rather to provide quick resolution of disputes (large and small) related to individual credit accounts. There have been concerns about the implementation and the scope of the work being done by mediators, but there is hope that the role of ADR agents will become increasingly clear over time.
Court attached mediation
Other laws, such as the Rules Board for Courts of Law Act and others, have introduced judicial mediation to encourage the use of mediation to ease the workload of the courts and to help resolve matters without litigation.
The parties to new legal action must now indicate (when filing court files) whether or not they are open to mediation. If they are not ready, they will later be charged by the court if they are not ready to do so. It is hoped that these additional costs will result in more people taking advantage of the wide range of available and specialized mediation that is now on offer.
ADR Training & Associations
There are now specialized training bodies such as the rapidly growing ADR Network SA that can certify mediators and provide critical training in the various forms of mediation (from dispute resolution for divorce, trade disputes, labor disputes, medical negligence, restorative justice or even human rights and constitutional disputes).
Be sure to read our February issue for a deeper insight into mediation training.
This article first appeared in Debt Free Magazine Issue No. 1 of 2021