Mediation Misunderstood

People evolve and one can describe the litigation evolution as “coming full circle”.

Most things already exist and are not thought out but merely rediscovered. Mediation as the oldest form of dispute resolution is one.

As people grow and evolve they tend to return to more basic things in life, things less complicated.

The idea, or notion that the breach or enforcement or entitlement of le legal right is the cause of a dispute or “legal battle” is misconstrued.

Most disputes of whatever nature is born from some sort of dignity violation, which causes anger, mistrust, resentment and a misinterpretation of the law as well as a total lack of logic. The dispute more often than not has nothing to do with the law. The law is what it is, and is based on logic, but logic in and from a mind that is functioning in a perfect neurocognitive state. Anais Nin said: “We do not see things as they are but as we are”.

It is then not difficult to imagine what this subjectivity as opposed to objectivity has on fact. Ever heard of your version, my version and the truth?

Disputes and the emotions linked to disputes similar to all other emotions originate in the reptilian brain.

The human brain shows three layers of distinct evolution, the reptilian brain, (survival), the limbic brain (emotions), the neuro-cortex (higher-order thinking and cognition).

The three layers can be thought of as interconnected, but at the same time independent neural networks, for example, all perceptions no matter what or how objective or rational it may seem to be are in fact first perceived and filtered through emotions, a switch that activates or suppresses cortical thinking or reptilian, non-thinking. Therefore humans cannot be logical and highly emotional at the same time. An angry person becomes angrier when asked to think logically because glucose and oxygen are provided primarily to those areas of the brain which regulate emotion and the neuro-cortex is deprived of the essential nutrients until such time as the body has had time to self-regulate. Now you understand the reasoning behind, “count to ten”!

It, therefore, follows “logically” that all disputes originate in the reptilian brain and it is the mediator’s task to assist in regulating the emotions in order to activate the neuro-cortex. In other words make both parties think higher, seething as “they” are and not for what they are.

Litigation, arbitration and negotiation feed the reptilian brain and more often than not lines the pockets of lawyers long before a resolution is found.

The purpose of mediation:

To promote access to justice;

Promoting restorative justice;

Preserve relationships between litigants or potential litigants who may become strained by the adversarial nature of Litigation, arbitration and negotiation;

Facilitate an expeditious and cost-effective resolution to the dispute between litigants of potential litigants;

Assist litigants or potential litigants to determine at an early stage of the litigation or prior to the litigation whether proceedings with a trial or an opposed application are in their best interest or not;

Provide litigants or potential litigants with a solution to the dispute, which is beyond the scope and powers of judicial officers.

Mediation is fast effective and cheap. The process is done in complete confidence no notes or recordings are used and unless a resolution is reduced to writing nothing in mediation may be used later in any court of law.

It is really as they say a no-brainer. Any thinkable dispute, disagreement or grievance is capable of being mediated. It can be done immediately, no filling of papers and waiting for courts and court dates and suffering costs because of postponements…I can go on and on….

Now that you know better, insist on mediation, it is your right!



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