Kompleksiteit en bemiddeling: ʼn Model vir die ontwerp van gepaste regulering

[摘要] ENGLISH ABSTRACT : The purpose of this study is to design a theoretical model of mediation that can beutilised to analyse the impact of regulation on the mediation process – andspecifically the impact on the diversity that is said to characterise it. Althoughmediation is inherently a private and informal dispute resolution process, it isincreasingly subjected to prescriptive and formal regulatory requirements. Regulationinevitably results in tension between the informal nature of mediation and the rigidity,formality and prescriptive nature of regulation. This tension is generally known as thediversity-consistency dilemma. The dilemma implies that a proper analysis of theimpact of regulation is required to ensure that the appropriate and effectiveregulation of mediation does not occur at the cost of the inherent nature and featuresof the mediation process.The argument put forward in this study is that the mediation process can bemodelled as a complex social system. The singular character and unique qualities ofthis system – and specifically the complex interaction taking place within it –distinguishes mediation from other forms of dispute resolution. This complexitymodel of mediation therefore allows for an analysis of the impact that regulation hason the most fundamental qualities of the mediation process.A complexity model furthermore allows for the analysis of diversity, as a quality ofthe mediation process, from a unique and novel perspective. Diversity in mediation istypically equated to the procedural flexibility, informality and multi-functionality that isgenerally associated with mediation. However, a systems analysis shows thatdiversity is a product of the complex interactions taking place during mediation.Diversity is therefore an inherent and fundamental attribute of the mediation process.This research consequently succeeds in giving actual content and meaning to theconcept of diversity in mediation. This content makes it possible to determine withcertainty what the diversity-consistency dilemma truly implies for the appropriate andeffective regulation of mediation.These implications are consequently examined for each of the three most generalforms of regulation in the context of mediation, namely triggering laws, procedural regulation and standardising mechanism. This examination finds that the design andimplementation of regulations are often based on theoretically unsound assumptions.These mechanisms are therefore often not optimally effective, and unnecessarilyexacerbate the tension represented by the diversity-consistency dilemma. Thepurpose of this study is therefore to lastly also provide new perspectives on theregulation of mediation.These new perspectives prove that a complexity model of mediation – as well as theunique paradigm of complexity that it permits – enables the design andimplementation of effective, appropriate, fair and theoretically sound forms ofregulation that will ultimately ensure and support the use of mediation. Therebyactual and legitimate requirements for standardisation and consistency can beachieved without unduly restricting the diversity that fundamentally characterises themediation process.

[发布机构] Stellenbosch University