The Role of the Lawyer in the Commercial Mediation Process: A Critical Analysis of the Legal and Regulatory Issues

Authors Ronán Feehily

ISSN: 1996-2177
Affiliations: Senior Lecturer, Middlesex University; Honorary Fellow of Commercial Law, Durham University
Source: South African Law Journal, Volume 133 Issue 2, 2016, p. 352 – 388


The most common complaint about the current civil justice system in South Africa is that the cost of litigation is prohibitive. Mediation can produce cost-effective results for disputing commercial parties that an arbitrator is unlikely or unable to award or a court would or could never decree, such as an apology or the redrafting of a commercial agreement to take account of changed economic circumstances. Parties in a mediation empower themselves to find their own solution with the assistance, guidance and support of their lawyers who are present as legal advisers rather than legal representatives. The article analyses the role of the lawyer in this context, the limits of adjudication and the possibilities of commercial mediation and the differing core values, roles and processes between the two approaches. The duties of lawyers before and after the process commences are analysed. The potential legal liability of lawyers in mediation is analysed and the role of lawyers as gatekeepers of the process is discussed. Mediation operating in the shadow of the law and its closeness to the justice ideal are the final issues considered. Throughout the piece the author provides commentary on proposals for regulatory and law reform covering this area.