In recent times, many employers are turning to labour law mediation as an alternative means of resolving labour disputes. The process involves a neutral third party, who is skilled in mediation, attempting to facilitate a settlement of the dispute between the parties.
There are a number of benefits that come with mediation.
The first benefit is cost-effectiveness. Litigation through arbitration in the CCMA or in a bargaining council, can be very costly. Litigation in the labour court, whether through a trial over multiple days or an application, can be even more costly. Typically, a mediation lasts a day or two, and is thus a very effective way to contain costs.
The second main benefit is confidentiality. Unlike proceedings in the CCMA or in the Labour Court, which are not private and confidential in nature, mediation is a closed process which is conducted on a privileged, without prejudice basis (meaning that the contents thereof can’t be subsequently disclosed (even if a settlement is not achieved). Any settlement agreement which emanates from the process can itself contain a confidentiality clause preventing disclosure. This is particularly advantageous in sensitive, high-profile matters.
The third main benefit is that the outcome is controlled by the parties. This is in contrast with litigation, which usually results in a “winner takes all” scenario where one party wins and the other loses. In a labour law mediation, both parties are usually required to compromise and end up agreeing to an outcome that both parties can live with.
While the mediator has no powers in terms of dictating the outcome of the dispute, it is important for the mediator to be a skilled individual who has the trust and confidence of both parties, and who can effectively guide the parties towards an amicable resolution. Many institutions offer mediation courses, and there are many experienced and skilled mediators available to assist parties when the need arises.