Chris Fick & Associates

a1bThe draft Court Rules for court-annexed mediation has been published for comment and will be finalised soon. Implementation thereof in certain magistrates courts is planned for August this year.

With the impending implementation of mediation as part of the litigation process, although it might be voluntary, it is important to make the distinction between the court-annexed or court-imposed mediation option, as opposed to the more authentic private or voluntary mediation.

Private or voluntary mediation can be entered into at any time by disputing parties who agree to do so (not only after a summons has been issued). Timing plays an important role in dispute settlement and depending on the specific matter and the readiness of the parties a dispute can be successfully addressed at the outset of the dispute, by the parties themselves over coffee, or later, by the parties or their attorneys, before issuing summons, or at any time thereafter. In more than 90% of cases litigation matters are settled before they actually go to court – but usually as a compromise of only those aspects which are reflected in the court papers.

Mediation is assisted negotiation, a process to which both parties have to agree to become involved in. It is private and confidential, without prejudice, which means that nothing said between the parties or said in confidence to the mediator, can be used in court by the other party. It is a very safe process, quick to conduct and inexpensive to run.

A properly trained and accredited mediator manages the process in order to establish all the interests and concerns of both parties, and explores options which the parties can consider as possible optimal solutions to the dispute(s). These options can be amended and adapted and finally agree upon, if both are happy that it is a better solution than going to court a few years later, and a few hundred thousand rand poorer.

Due to the fact that court-annexed mediation will only be implemented after the issue of summons, with the associated fixation by the parties on their respective positions, we believe that it will have limited application. Court-annexed mediation is unlikely to be able to make full use of the benefits of a properly constructed and professionally conducted private mediation, done at a time when there is still a measure of goodwill left between disputing parties. While any and all efforts to quicker, cheaper and better dispute settlement should be welcomed, it is very important to be aware that full-on private mediation at an appropriate time has the better chance to get the best results for disputing parties.

We are very happy to meet with you (and/or your lawyer) at no cost to you to answer your questions and to explain the benefits of the process, its requirements and limitations. Properly conducted mediation has real benefits for you as client and can add value to the practice of all litigation attorneys.

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This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.