Browsing by Author "Spruyt, Wynand Max Alexander"

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    Kompleksiteit en bemiddeling: ʼn Model vir die ontwerp van gepaste regulering
    (Stellenbosch : Stellenbosch University, 2017-12) Spruyt, Wynand Max Alexander; Human, Sonia; Stellenbosch University. Faculty of Law. Department of Private Law.
    ENGLISH ABSTRACT : The purpose of this study is to design a theoretical model of mediation that can be utilised to analyse the impact of regulation on the mediation process – and specifically the impact on the diversity that is said to characterise it. Although mediation is inherently a private and informal dispute resolution process, it is increasingly subjected to prescriptive and formal regulatory requirements. Regulation inevitably results in tension between the informal nature of mediation and the rigidity, formality and prescriptive nature of regulation. This tension is generally known as the diversity-consistency dilemma. The dilemma implies that a proper analysis of the impact of regulation is required to ensure that the appropriate and effective regulation of mediation does not occur at the cost of the inherent nature and features of the mediation process. The argument put forward in this study is that the mediation process can be modelled as a complex social system. The singular character and unique qualities of this system – and specifically the complex interaction taking place within it – distinguishes mediation from other forms of dispute resolution. This complexity model of mediation therefore allows for an analysis of the impact that regulation has on the most fundamental qualities of the mediation process. A complexity model furthermore allows for the analysis of diversity, as a quality of the mediation process, from a unique and novel perspective. Diversity in mediation is typically equated to the procedural flexibility, informality and multi-functionality that is generally associated with mediation. However, a systems analysis shows that diversity 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 the concept of diversity in mediation. This content makes it possible to determine with certainty what the diversity-consistency dilemma truly implies for the appropriate and effective regulation of mediation. These implications are consequently examined for each of the three most general forms of regulation in the context of mediation, namely triggering laws, procedural regulation and standardising mechanism. This examination finds that the design and implementation of regulations are often based on theoretically unsound assumptions. These mechanisms are therefore often not optimally effective, and unnecessarily exacerbate the tension represented by the diversity-consistency dilemma. The purpose of this study is therefore to lastly also provide new perspectives on the regulation of mediation. These new perspectives prove that a complexity model of mediation – as well as the unique paradigm of complexity that it permits – enables the design and implementation of effective, appropriate, fair and theoretically sound forms of regulation that will ultimately ensure and support the use of mediation. Thereby actual and legitimate requirements for standardisation and consistency can be achieved without unduly restricting the diversity that fundamentally characterises the mediation process.