“So, tell me one thing, why would a litigation attorney refer a matter to mediation?” asks William, a senior commercial attorney in Cape Town. I hesitate a moment, shifting the phone to my other ear before responding: “Well, when an attorney knows a matter is ready for settlement, or when it is ripe for mediation, when it clearly is in his client’s interest to do so, it is his ethical duty to do so…” I thought my answer was quite legitimate but William would have none of it. “Ah no man, honestly Chris, ethics doesn’t exist in practice! Economists know this and that’s why they rule the world. Attorneys are generally not guided by ethics either. They are moved by either penalty or by reward”. A light bulb moment!
If that is the case, then what is the relevance of ethics in practice? Nothing, unless you have a dog with teeth that can ensure that ethical behaviour is applied across the board and errant puppies are firmly put in place when they wander off the straight and narrow. Ethics is in the eye of the beholder. You cannot teach someone to be ethical – you can merely strip him of his innocence.
Mediation (a fairly nonsensical name for something that is really “assisted negotiation”) exists in many spheres of life, properly trained and accredited mediators are ready and waiting, people get involved in thousands of disputes all the time, but still… who mediates? Generally anyone who looks at mediation has to realise the benefits for the disputing parties.
But what is the benefit for lawyers? A happy client? A good feeling about a job well done? Proud that a matter was resolved quickly, inexpensively, with an optimal solution agreed to (not just a settlement compromise), and relationships restored or maintained? Lawyers don’t get paid for that. Not enough.
What does mediation mean for lawyers? Matters are settled too quickly. Income is reduced. Too few matters. Too few clients. Disaster looms. Some advocates at the Cape Bar even feel their constitutional rights are threatened by Mediation.
So, clearly mediation as a way to solve problems, as a mechanism to find better solutions for ongoing disputes, is doomed – unless the client him/her/itself knows and understands the benefits of mediation and insists on this option to be explored and fully utilised. In his/her/its own interest.
Of course litigation is important. And it’s the ultimate winner takes all, matter finally resolved solution when other avenues, such as the considerably more evolved method of mediation, has failed. And mediation can fail. Some matters just need to go to court for a definite legal adjudication. Sometimes a judge just has to say who is right in law and who is not. It may be fair, or not, it will be expensive and time-consuming, but eventually there will be a clear call made and the matter finally dealt with. Unless it is taken on appeal.
But mediation is the process whereby most disputes can be resolved with outcomes that a court, and parties in a litigation action, can only dream of. In my ideal world the solution lies with the man in the street waking up to this fact, and seeking mediation before litigation, or instructing his/her lawyers to follow this route as first option before investing a truckload of time, money and stress into a court battle.
Dear client, the option is yours. It’s your money, time and life. Litigate now and pay later. Or mediate, get an optimal solution to the problem, and move on with your life.
– Chris Fick – chris@chrisfick.co.za.
Contact Chris and/or MC for more information and a 30 minute information session on mediation, at no cost to you. Also see www.aim-mediation.co.za.
“Either you deal with what is the reality or you can be sure that the reality is going to deal with you.” – Alex Haley