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n Tydskrif vir die Suid-Afrikaanse Reg - Confidentiality in commercial mediation : a fine balance (part 1)
In determining whether a mediated settlement agreement should be enforced, the court engages in an intensely fact-based investigation and often delves into what happened at the mediation itself. While mediation confidentiality does not currently appear to be a difficulty in South Africa, as mediation is increasingly adopted as the process to resolve commercial disputes, the discussion below will have increasing importance.
While an unambiguous contract will, in the normal course of things, be interpreted by the courts without the need to look at evidence outside the contract, an investigation of the negotiation process is likely to be required in order to assess if an oral contract exists where there is no written agreement, and to review situations where ambiguities are claimed in order to clarify their meaning. The various contract law defences regarding mediated settlement agreements such as duress, lack of capacity, lack of authority, mistake and fraud, are all largely determined by what happened at the mediation.
Courts and policy-makers have struggled with the tension between developing the facts to assess what transpired during the mediation in order to analyse claims made, and the need to preserve the confidentiality of the mediation process. Identification of the circumstances and the nature of the evidence that should be allowed, as well as the permissible scope of testimony by the mediator, have all been causes of concern.
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