Mediation Legislation around the World—A Variety of Options for South Africa
Author Madelene de Jong
Affiliations: BLC (University of Pretoria); LLB (University of Pretoria); LLD (University of South Africa). Professor of Law, University of South Africa.
Source: Comparative and International Law Journal of Southern Africa, The, Volume 52 Issue 3, p. 279 – 318
Mediation has gained traction across the globe on account of its strengths. At present, it has widespread application in a range of civil disputes in areas that include the family, children, labour, medical malpractice, bioethics, environmental issues, the community and education, and even criminal matters. As a result, various jurisdictions have opted to regulate mediation, at first mostly through softer forms of regulation, but more recently increasingly through extensive legislation. However, the question is whether an informal process like mediation needs to be formally regulated, and if so, how it could be regulated. Although regulation is often associated with legislation, there are in fact four different regulatory approaches, namely market-contract regulation, self-regulation, the formal-regulatory approach, and the formal legislative approach. There are also different aspects of mediation that require regulation. In this regard, reference is made to triggering laws, procedural laws, standard-setting laws and beneficial laws. With regard to the scope of mediation legislation, a further distinction is made between general mediation legislation, sector-specific mediation legislation and context-integrated mediation legislation. Against this background, the regulation of mediation in general and family mediation in particular in four foreign jurisdictions—namely Ghana as an African jurisdiction, Singapore as an Asian jurisdiction, Austria as a European-Continental jurisdiction and Australia as an Anglo-American jurisdiction—is discussed. The experiences of these jurisdictions offer useful examples for the further development of mediation regulation in South Africa. The article therefore also provides a brief overview of the current state of mediation regulation in South Africa and concludes by highlighting the valuable lessons that can be learnt from the foreign jurisdictions examined. It is abundantly clear that South Africa needs extensive mediation legislation to give mediation the formal recognition it deserves, while simultaneously maximising the benefits of mediation, minimising its potential harms and protecting the mediator, the parties and outside parties.