At a recent RICS (www.rics.com) meeting held in Cape Town, a well-respected mediator in the engineering field asked the presenters, John Fletcher and adv. Jacques Joubert (www.aim-mediation.co.za), why attorneys who specialise in litigation would refer their clients’ matters to Mediation at all. What motivation would they have?The question is extremely relevant as undoubtedly attorneys and advocates hold the key to the use and implementation of proper Mediation in dispute settlement. Ignorance of the real benefits of a properly conducted Mediation is the first obstacle. Lack of knowledge of Mediation, the process and its range of benefits is still prevalent among members of the public at large, but also among many lawyers, attorneys and advocates alike. This ignorance stems from historical ideas and experiences with events or processes which were called Mediation but which have little bearing on Mediation as practiced today by trained mediators. As a result the many benefits of Mediation remain a mystery to most.The engineer/mediator’s question clearly assumes that lawyers only act in their own interests and it surmises that court cases are run primarily for the benefit of the attorneys’ well-being and not in the interest of the client and/or on the merits of the case. That is a cynical premise and probably based on watching too many American TV courtroom dramas. Or is it?That brings us to the second hurdle. Billable hours. Money. While the first hurdle is because people, including lawyers, just don’t know the real Mediation process well enough, the 2nd one goes to an ethical issue. Earning-a-living vs Client’s-interest. Some lawyers, and I (want to) believe they are in the minority, are scared of what the Mediation process can do to their practices, scared of having their cases (potentially) resolved within days at a fraction of the costs of a full-blown court case.
Of course there are many litigation attorneys and advocates who might feel that their livelihood could be under threat should Mediation be used widely to resolve disputes. Many of our colleagues have already said so. And they are right that Mediation will change the way in which disputes are resolved – Mediation will replace Litigation and Arbitration as the preferred or primary method of dealing with disputes. In most cases Mediation takes a fraction of the time and costs a sliver of what it takes to run a Litigation or Arbitration matter. Furthermore, the process is voluntary and will only be successful when both parties feel they have achieved a better result for both of them than what a court case could have delivered.
The fact is we all have to adapt to new and better ideas which serve the public (our clients) better. Mediation as practiced in the US, Europe and Australia is quick to arrange and to conduct, it is relatively inexpensive and it is very effective in resolving most disputes.
I don’t have to go into the technical detail of the Mediation process in this article. In a nutshell, Mediation is enhanced negotiation, under guidance of a trained facilitator. It’s a safe, private process conducted professionally and without prejudice. It is “Negotiation on Steroids”. Focussed solution-seeking discussions, true to the African way of dealing with problems, are widely utilised in Africa in countries such as Kenya and Ghana. Even in South Africa, in specific fields such as family law and labour law it is already extensively used and the contention that this active process will spread to other parts of conflict resolution, is well founded.
So, why would a litigation attorney refer his client’s matter to Mediation? Simply because he/she would consider it in his/her client’s best interest to get the optimum result for the client at as early a stage as possible and at a cost as inexpensive as possible. Most attorneys are ethical and professional and therefore most attorneys who understands the process and know the benefits of Mediation, would consider Mediation as one of the first tools by means of which a dispute of his/her client could be resolved successfully.
Statistics prove that more than 90% of cases in the Cape High Court settle before the actual Court proceedings commence. Those cases often settle deep into the litigation process and sometimes at the steps of the Court when large amounts of costs have been incurred and a lot of time has been wasted. The earlier a matter can be considered and found to be ripe and ready for Mediation, the better. Not all disputes are ready for negotiation or mediation at the outset but there comes a time in any dispute, well before unnecessary time and costs have been spent, when Mediation can be employed to give disputing parties a decent shot at finding an optimal solution to their dispute, to their conflicting claims and to their opposing views and expectations. Mediation aims for a win-win solution of the optimal kind, not a compromise settlement at the steps of the Court when nobody really can win anymore.
Attorneys know this. Advocates know this. Judges know this. And if they don’t it is their responsibility to educate themselves as to the benefits of Mediation. Once you know Mediation, Litigation is a last resort. And that is the answer to the question why attorneys would refer matters to Mediation as soon as it can be done. The significant benefit for the attorney is a happy client, a client who will return to the attorney who served his interests by, in the shortest possible time, at the best possible price, achieved the best possible result for him.
Chris Fick – December 2012
(For more information on Mediation, refer to www.aim-mediation.co.za)