Earlier this year I was instructed to attempt to mediate a long running litigation matter. This was my first opportunity to mediate in a dispute where the parties’ relationship and trust had broken down completely, not only as a result of the original dispute but also as a direct result of the adversarial nature of litigation and the associated cost implications for all those involved.
This four year old legal battle, which had been heard in the High Court on two previous occasions, was due to continue in the week after the mediation. To the absolute credit of the respective sets of legal representatives of the disputing parties, they agreed to propose a Mediation session for their clients on the Wednesday before they were due in Court again.
The attorneys and advocates were concerned about the financial implications for both clients in this ongoing legal wrangle. Both clients stood their ground and wanted their cases fully heard and justice to be done. The legal counsel estimated their combined legal costs for the upcoming 4 days in Court to be another R400 000,00, In relation to the claims at stake, this was getting too expensive. And they still were not sure that they would be allocated a judge on the Monday when the proceedings were scheduled to commence.
The respective attorneys and advocates felt the clients had nothing to lose to try to mediate their differences – in a further attempt at avoiding the ongoing litigation and associated costs.
Neither of the clients, their attorneys or advocates have participated in a Mediation before. The nature of the Mediation process was explained and the Agreement to Mediate signed. The characteristics of voluntary participation and private and confidential (without prejudice) discussions were highlighted, and confirmed that whatever information is disclosed by the parties during the process cannot be used in Court, should the mediation fail to settle the dispute. The parties were also informed that any party can withdraw from the mediation at any stage. It is only when an agreement is signed by all the parties is the process completed and the outcome binding.
With all parties and their legal support around the table, the two advocates made their opening statements, explaining the background to the disputes, stating their positions and what they wanted from this process. The parties did not look at each other, and after their advocates’ statements, they briefly explained their issues, needs and requirements in regard to this matter.
The parties elected to meet with me without their legal representatives. I met with both of them in alternating private side meetings and by lunch time it seemed that on at least two of the claims we were getting closer to a mutually beneficial solution. The third aspect was problematic and the parties held diametrically opposed views and staunch positions. At that stage the advocate of one of the parties confessed that he thought that aspect was too difficult to agree on but we were making progress and I asked one of the advocates to start preparing a draft settlement agreement dealing with the first two claims which were just about settled. Both clients then sat in private rooms with their legal representatives and a proposal on the third outstanding aspect began to develop into a possibility. The draft settlement was looked at and commented on by both sets of representatives and then they (attorneys and counsel) decided that they were leaving the mediation so I could continue with the clients and finalise the agreement. This worked well and by 5pm both parties signed the final settlement agreement which would be made an Order of Court.
After finalisation of the mediation the clients were talking freely with each other and making arrangements in regard to implementation of their agreement.
These litigating parties of 4 years standing, settled their disputes in a day and made their agreement an Order of Court. To an extent their relationship has been restored and with the goodwill of both, they will be able to implement their agreement smoothly and finally move on with their lives.
Chris Fick – Oct/Nov 2012
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For more information on Mediation, its benefits, and when, where and how to engage with it, go to www.aim-mediation.co.za. Please contact any of the mediators for more information.