Mediation is a dispute resolution procedure which enables disputing parties to arrive at a negotiated settlement. A mediator is the neutral facilitator of the
settlement and is central to the attainment of the settlement but however does not impose a position on the parties. In mediation proceedings the parties
are in control of the whole process including the outcome.
Mediation versus litigation
In litigation, the decision maker's function is to make findings in relation to the enforcement of legal rights and obligations. In mediation, the primary focus is the parties' needs, rather than their rights and obligations.
Mediation looks for common ground, and finds the best resolution for both parties. It enables the parties to gain a proper appreciation of their needs and those of the other parties and to explore the strengths and weaknesses of their respective cases.
If both parties in dispute agree to mediate, they engage the services of a qualified and impartial third party to assist them in negotiating a resolution of the dispute, without the need to go to court.
The Mediator does not have independent authority. He does not impose a decision or attempt to judge the merits of the case. Mediation can be used before and during the litigation process.
If the parties settle the matter, the agreement only becomes binding once it has been drawn up and signed by all parties. Should either party breach the agreement, it may be enforced contractually or, preferably, by a further mediation. As the parties would have worked hard to achieve a settlement and upon terms that were always within their control, unlike an imposed court decision, breaches of mediation agreements seldom occur.
Why choose Mediation?
In mediation, parties can reach a win-win settlement as opposed to arbitration and adjudication where there is a winner and a loser. Mediation is also economic and expeditious. Our mediators at AIMA bring in a wealth of experience into the
mediation process since most of them were Judges.
Mediation is significantly less expensive than litigation.
All discussions are completely confidential. The parties can have confidential and open discussions with the Mediator about all aspects of their case.
Mediation resolves disputes fast, usually within a day and can be arranged at relatively short notice.
With the help of the Mediator, the parties decide for themselves upon a settlement they can live with and the outcome of mediation is always within their control.
Parties in mediation avoid the dissatisfaction often experienced in court or at arbitration where they have little choice but to accept the judgment (which may be disappointing) imposed upon them.
Mediation can take place at any time. It is not limited to ordinary working days or hours and if necessary, parties can negotiate during a weekend.
Post- Conflict Relationship
In disputes where it is desirable to develop and maintain a working relationship in the post- conflict period, mediation offers the parties an opportunity (not always available in litigation) to explore the possibilities of maintaining an on-going amicable relationship in the post-conflict period.
Susan Mutangadura is a Commercial Arbitrator who combines practical experience and academic studies in international commercial arbitration with a wealth of corporate experience and a background as a legal practitioner.
Moses Chinhengo is a founder member and Director of AIMA. He has conducted several arbitrations as a panel member of the Harare Commercial Arbitration Centre.
Daniel Tivadar is a Barrister-at-Law qualifed in England and Wales and an Advocate qualifed in Zimbabwe.
Justice Simbi Mubako is a former Minister of Justice in Zimbabwe, a former judge of the High Court of Zimbabwe and was Zimbabwe's Ambassador to the United States of America.