The role of the commercial mediator in the mediation process: A critical analysis of the legal and regulatory issues
Authors Ronán Feehily
Affiliations: Senior Lecturer, Middlesex University; Honorary Fellow of Commercial Law, Durham University
Source: South African Law Journal, Volume 132 Issue 2, 2015, p. 372 – 410
As commercial mediation makes its advance into the dispute resolution arena in South Africa, the article analyses the role of the mediator in the process from a legal and regulatory perspective. After discussing the qualities, skills and role of the mediator, the piece analyses the models of mediation most appropriate to the resolution of commercial disputes. The article proceeds to deal with education, training, accreditation and standards with particular reference to best practice experience from the EU and USAas a guide for the developing commercial mediation industry in South Africa. The possibility that legal proceedings might be brought against mediators is a significant form of accountability. Experience from other jurisdictions suggests that proceedings are likely to be taken against mediators by aggrieved disputants or third parties in South Africa. A number of situations are identified and analysed in light of existing jurisprudence where parties could seek to hold commercial mediators liable, as well as the steps that can be followed in order to limit exposure. The article also discusses mediator immunity before concluding with a discussion on the relationship between mediation and the practice of law in order to avoid confusion between the two roles of mediator and lawyer.