MEDIATION – THE COMING TIDE

 

The South African Legal Profession has been slow to accept the legitimacy of mediation proceedings despite the enormous pragmatic and financial advantages.

In the past both lawyers and clients have preferred the certainty and even the “aggression” of litigation. However mediation is no longer playing 2nd fiddle to its more hard-line cousin.

In jurisdictions such as the United States, United Kingdom and Canada considerably more cases are referred to mediation than will ever see a court room. In South Africa lawyers, judges, clients and even the Law Society of South Africa are seeing that the massive advantages of mediation cannot be ignored.

What is mediation?

In a nutshell mediation is dealing with a dispute or controversy by setting up an independent person between the contending parties in order to aid them to reach a just and equitable settlement to their disagreement.

More broadly mediation is about trying to create a solution where both parties get more-or-less what they want without going to court.

Why Mediation?

The obvious answer is that mediation is usually both considerably cheaper and less stressful than going to court.

  • While one can wait as long as 2 years before a trial even begins, mediation is likely to be over within 2 weeks.
  • In addition mediation lacks the adversarial nature of court. There are not supposed to be “winners” and “losers”.
  • Mediation creates flexible outcomes in the interests of both parties.
  • Mediation is now making its way into law by means of the new amended Chapter 2 of the Magistrates Court Rules.
  • The law society sees not only the advantages it has for the parties but also its potential to alleviate our backlogged court system;

You are strongly advised to consider:

Mediation is still voluntary and there is officially no sanction for refusing it and going straight to court BUT (aside from only considering its obvious advantages) one should strongly consider mediation before going straight to court!

The South Gauteng High Court held, in the case of Brownlee v Brownlee, that if one party proposes mediation and the other unreasonably refuses, the party in favour of mediation is likely to succeed in calling for an adverse costs.

In other words…

If you insist on going to court and it is shown that the matter could have easily been settled in mediation then you alone may bare the extra costs that came with proceeding in court!

The Roman Emperor Marcus Aurelius once stated: “How much more grievous are the consequences of anger than the causes of it.”

It is easy to try settling disputes with the more aggressive option, but even if you “win” you need to consider whether the final outcome benefitted you or simply hurt the other party. Mediation provides a means whereby as much as it is possible, both parties can benefit.

This is a key aspect to mediation especially because a working or personal relationship may need to be maintained once the proceedings end.

Mediation is already a huge part of South African law and it is growing faster than ever. So if you find yourself in a dispute of any nature remember to keep calm and consider mediation.

Let us help you:

If you require mediation services (either legal representation at a mediation hearing or the services of a qualified and accredited mediator) for civil disputes, commercial disputes, family law disputes, divorces or labour disputes please feel free to contact us.

For more information on this or any other legal related queries please contact us at 033 392 8000

By Joanna Mayne – Director/Attorney, Conveyancer and Mediator

 

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