This depends on who is involved. Mediation is a dispute resolution procedure and as we all know, disputes abound in the world – from minor (or violent) family arguments to a clash of countries on the brink or nuclear war, are disputes which must be resolved somehow. Mediation is increasingly becoming prominent as a dispute resolution process, particularly in the Western world.
It is quite common these days to hear, or see in the media that a particular individual in the United Nations or one of the countries in Africa (as an example) is to put forward a team of mediators, under the leadership of a prominent politician, to try to guide the nations (or ethnic groups) that are involved, into talks to attempt to avoid or end conflict. Recently, the President of India volunteered to mediate between the combatants in the war between Russia and Ukraine.
Where I live, in a dry region of South Africa, there are frequently disputes over water rights, between land owners who grow crops such as grapes and citrus, all of which need plenty of water. Farmers have been known at night to bring out pumps to redirect river water to the dams on their farms, to irrigate their crops or their livestock. Should a mediation be held under such circumstances, it is likely that both landowners (or more, if the dispute includes more) and their attorneys will attend. Most likely, each farmer will have his attorney with him. This can be problematic, unless all the lawyers have been trained in mediation.
A large number of lawyers have attended mediation courses – these are very short, requiring only 40 hours and in some cases, attendance as an assistant or observer, in two or three mediation sessions. Nevertheless, even lawyers who have not attended such courses, are referring cases to mediation at an ever-increasing rate.
How is it that these disputes are going to mediation? There is a legal notice which has, for longer than a year, been required in every case in our civil courts. Rule 21A in the Magistrates Court and Rule 41A in the High Court, both require that a form relating to mediation must accompany any case launched through either court – there are of course hundreds of Magistrates Courts and a dozen or so High Courts, serving South Africa. Each now will not issue new sets of court papers, unless the form is attached. So, every new case started in these courts, potentially brings mediation into our courts. The notices provide that the person issuing the new case must complete various questions, relating to mediation. These notices contain various questions pertaining to each case. In short, the person issuing the form to commence a new case, must comment on the possibility of success (or not) in the case concerned. The Defendant in each case (be it he, she, or a company) must also comment as to whether it seems that the case could be settled via mediation and also give reasons for the opinion. This form gives the attorney issuing it, reason to consider the question of mediation. Furthermore, if a case actually goes all the way to trial (about 2% of cases, no more), the judicial officer presiding must, before making an order against either side to pay the legal costs of the other, consider whether the case concerned ought to have been resolved through mediation. He (or she) will then make a costs order against the side that, in his opinion, ought to have taken the case to mediation.
The above process is not just making lawyers consider the question of using mediation, it is also helping to reduce the backlog of cases clogging our courts, so as to speed up the course of justice in our country.
In international disputes, it may be announced that a particular politician is to mediate between two warring countries or nations. You can be sure that he or she will not do this alone; he will take a sizeable team of investigators and advisers, to assist in assessing and then performing shuttle-diplomacy to try to assist parties to secure a solution.
Imagine having to try to pacify the Russia/Ukraine debacle? As we know, the parties are miles apart in their demands – Ukraine wants Russia to withdraw totally from all invaded territory and to provide restoration for damage caused. Russia has responded with demands that are just as wide-ranging. Nevertheless, it is likely that there will be meetings, titled “Peace Talks”, mediated by somebody – possibly, the Secretary General of the UN (my guess – pure speculation).
At the other end of the spectrum, I have been mediating in family issues for more than three decades (I was a lawyer for over 40 years). In KwaZulu-Natal, where I practiced, it is rare for either of the parties to bring their attorneys or advocates to the mediation in a domestic matter. However, it is quite possible for the mediator to suggest that the parties call a psychologist or a social worker, to advise on arrangements for the children or a financial adviser to advise on the best way to handle or divide investments. Such expert would, like the mediator, be a neutral person. And only remain in the room for as long as it takes to give his opinion and to answer questions from the parties.