| Mediation | Litigation/Arbitration |
| 1. | Voluntary participation in the process | Compulsory participation if rights are to be protected |
| 2. | Structured process but flexible and informal | Strictly prescribed and formal process where a non-compliance may result in significant prejudice |
| 3. | Confidentiality is maintained both in terms of the process as well as disclosures made to the Mediator | Court documents are by their very nature public, and contents can only be kept confidential by specific order of court |
| 4. | Negotiations are without prejudice of rights – this promotes the flow of information between the parties | Parties are bound by statements contained is their pleadings, in which for tactical reasons, only such information as is strictly necessary, is shared |
| 5. | Mediator acts as an independent and impartial facilitator – actively engages with the parties in their consideration of different options which may provide a solution | Judge/Arbiter presides as an independent and impartial ‘referee’ who hears the evidence of both parties – not inquisitorial and not involved in gathering information |
| 6. | Mediator only exercises control over the process – makes no determinations, gives no advice and voices no opinion | Judge/Arbiter ensures that prescribed procedures are followed and makes determinations according to the Law, on the admissibility and credibility of the information (evidence) presented |
| 7. | Party-sovereignty over outcome – the parties at all times remain in full control of the resolution of their dispute | Parties present their cases and evidence to the Judge/Arbiter for consideration, who then makes a determination on it – parties are not involved in the decision-making process |
| 8. | Relationships are more easily maintained – focus of the parties is on the outcome which best serves their interests – “win/win” | Process is directed toward the enforcement of rights of the parties – confrontational in nature with an almost inevitable “win/lose” outcome |
| 9. | As parties are in control of the outcome, costs can be managed by comparing the value of the outcome to the costs of achieving that outcome | Prescribed (compulsory) procedural steps inevitably result in the incurring of costs which cannot be determined with any certainty at the outset. (The Parties are thus unwilling passengers on a train, the destination of which is uncertain, and where the cost of the ticket can only be determined upon arrival at the destination) |
| 10. | Speedy resolution – as a result of the nature of the process, and the control of the Parties over the outcome, disputes can be resolved within a relatively short timeframe | Prescribed procedures and associated time periods, the employment of (dilatory) tactics, and the fact that court roles are usually filled months in advance, necessarily results in the adjudication of disputes in the courts being extremely time-consuming |
| 11. | Negotiated settlement in writing and signed by the Parties | Uncertainty about the outcome as well as possible delay in judgment being given – possibility of appeal/review – ultimately uncertainty about the execution of the court order |
| 12. | Can be undertaken at any stage – even during court proceedings, provider judgment has not yet been handed down | Parties are allocated a trial date – a postponement of the trial for any reason requires that an application for a new date be made – thus resulting in further delay |
| | |
