Mediation/Conciliation

Mediation involves using an impartial third party who helps both sides to a dispute to come to an agreement. Tokiso uses the terms ‘mediation’ and ‘conciliation’ interchangeably.

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Tokiso has mediation Rules that govern the principles of mediation. Should the parties require a mediation agreement, you are welcome to download this standard mediation agreement as a template.

Tokiso Mediation Rules

  1. The Commencement of Mediation

1.1         A party to a mediation agreement that wishes to commence a mediation shall deliver a notice of mediation in writing to each other party to the mediation agreement and to Tokiso Dispute Settlement (Pty) Limited (“Tokiso”).

1.2         For the purposes of these Rules, any notice, including a notification, communication or proposal, is deemed to have been received if it is physically delivered to the addressee or if it is delivered at his habitual residence, place of business or mailing address, or, if none of these can be found after making reasonable inquiry, then at the addressee’s last-known residence or place of business. Notice shall be deemed to have been received on the day it is so delivered.

1.3         For the purposes of calculating a period of time under these Rules, such period shall begin to run on the day following the day when a notice, notification, communication or proposal is received. If the last day of such period is an official holiday or a non-business day at the residence or place of business of the addressee, the period is extended until the first business day which follows. Official holidays or non-business days occurring during the running of the period of time are included in calculating the period.

1.4         The notice of mediation shall contain or be accompanied by:

1.4.1      the names, addresses and telephone, telefax, email or other contact details of the parties to the dispute and of the representative of the party filing the request for mediation;

1.4.2      a copy of the relevant mediation clause or agreement; and

1.4.3      a brief statement of the nature of the dispute and the outcome sought.

1.5         The date of the commencement of the mediation shall be the date on which the request for mediation is received by Tokiso.

  1. Appointment of the Mediator

2.1         The parties must agree on a mediator who must be a Tokiso accredited mediator.

2.2         If for any reason a mediator agreed upon by the parties cannot or does not accept an invitation to mediate, the parties may agree on another mediator within the time limits prescribed in the relevant mediation clause or agreement.

  1. Procedure for Appointment of the Mediator by Tokiso

3.1         If, within 5 (five) days of the receipt of the notice of mediation, the parties have failed to agree on a mediator, or the mediator does not accept an invitation to mediate and the parties have failed to agree on another mediator, then either party may ask the Chief Executive Officer of Tokiso (the “CEO”) to submit to each party an identical list of names of potential mediators. Each of the potential mediators suggested by the CEO shall be accredited as a mediator by Tokiso and shall be included on the list considering the needs of the parties, cost, availability and diversity.

3.2         Each party shall have 5 (five) days from the date upon which that party receives the list called for in rule 3.1 to cross off that list any names to which that party objects, number the remaining names in order of preference and return the list to the CEO. If a party does not return the list within the time specified, all the persons named therein shall be deemed acceptable as potential mediators.

3.3         The CEO shall then suggest to the parties in writing the name of the mediator from among the potential mediators who have been approved on both lists and having regard to the designated order of preference.

3.4         If the parties fail to agree on the CEO’s written suggestion referred to in rule 3.3; or if the suggested mediator is unable to act; or if for any reason an appointment cannot be made from the submitted lists, the CEO shall appoint the mediator, without the submission of any further lists but with regard to the lists submitted in terms of rule 3.2.

  1. Role of the Mediator

4.1         The mediator shall endeavour to assist the parties to settle the dispute by agreement and, unless agreed otherwise, the mediator shall not adjudicate the dispute, recommend a solution to the dispute, advise a party on the merits of the dispute or negotiate a settlement of the dispute on behalf of a party.

4.2         The mediator shall promote the settlement of the issues in dispute between the parties in any manner that the mediator believes to be appropriate but shall have no authority to impose a settlement on the parties.

  1. Conduct of the Mediation

5.1         The mediator shall have the discretion to conduct the mediation of the dispute in such manner as the mediator determines.

5.2         The parties shall abide by all decisions of the mediator regarding the process and conduct of the mediation.

5.3         The mediator may communicate with the parties orally or in writing, together or individually, and may convene a meeting or meetings at a venue to be determined by the mediator after consulting the parties.

5.4         Each party undertakes to cooperate in good faith with the mediator in the conduct of the mediation of the dispute.

5.5         The mediator shall be free to meet and to communicate separately with a party on the clear understanding that information given at such meetings and in such communications shall not be disclosed to the other party without the express authorization of the party giving the information.

  1. Termination of the Mediation

6.1         The mediation of the dispute shall terminate when:

6.1.1      the mediator receives written notice from a party stating that such party withdraws from the mediation, provided that no party shall withdraw from the mediation without first orally notifying the mediator and giving the mediator a reasonable opportunity to mediate on that party’s continued participation in the mediation;

6.1.2      the parties receive written notice from the mediator stating that in the mediator’s opinion there is no reasonable prospect of a settlement and therefore the mediator terminates the mediation; or

6.1.3      the parties conclude a written agreement between themselves in which the parties set out the terms upon which the parties settle the dispute or any part thereof (the “settlement agreement”), provided that the parties and mediator may agree in writing to continue the mediation in respect of any part of the dispute that remains unsettled after the conclusion of the settlement agreement.

  1. Effect of the Mediation

7.1         In the event that a settlement agreement is not reached in the mediation, the parties’ submission of the dispute to mediation shall not prejudice any of the parties’ rights.

7.2         In the event that the parties settle the dispute or any part thereof in a settlement agreement, then that settlement agreement shall be a final and binding settlement of the dispute or such part thereof, as is applicable.

  1. Confidentiality

8.1         The mediator may not disclose to any person (other than a party) any information first obtained during the mediation of the dispute without the prior written consent of the parties, unless compelled by law to do so.

8.2         A party may not disclose to any person (other than the mediator or that party’s professional advisors) any information first obtained during the mediation of the dispute without the prior written consent of the disclosing party, unless compelled by law to do so.

8.3         The mediator may not disclose to any person (including a party) information disclosed by a party to the mediator, without the prior consent of the disclosing party.

8.4         The parties agree that they will not at any time before, during or after the mediation compel the mediator to give evidence concerning information disclosed during the mediation of the dispute.

8.5         Nothing in this Rule 8 shall prevent a party from placing on record after the mediation any information that is substantially similar to information disclosed by that party during the mediation, provided that party does not state or imply that such information was stated or disclosed during the mediation.

  1. Costs

9.1         The mediator shall agree his or her fee with Tokiso and shall be bound by the Standard Conditions of Service for Panellists in force at the time of the mediation and by the Tokiso Code of Conduct for mediators.