THE COST OF MEDIATION VS LITIGATION

Litigation is the primary method of dispute resolution in the South African justice system. Essentially, litigation is the institutionalised process adopted by the court system as the method of resolving disputes. The process is characterised by a number of deficiencies, which include the adversarial nature of the process, which often creates further conflict between disputing parties and often results in permanently destroyed relationships. Further shortcomings include the highly complex, costly and time-consuming nature of litigation. Court rolls have become overburdened due to the rapidly increasing volume of litigation at court. This often results in extensive waiting periods before matters are heard at court and further infringes the attainment of access to justice. As a result, alternative dispute resolution (ADR) processes are posed as a viable alternative to the process of litigation.

There are certain areas of law, which make provision for mediation to be used as a mechanism for resolving disputes between the parties. The compulsory practice of mediation within the field of family law is currently affected through statutes found within this area of law. The Mediation in Certain Divorce Matters Act 24 of 1987 is an example of this. This piece of legislation necessitates the compulsory process of mediation. The legislature’s rationale for incorporating the process of mediation into legislation stemmed from the critical problem that family-law legal practitioners in the past often viewed divorce solely as a legal event. One of the main objectives of the Labour Relations Act 66 of 1995 (“LRA”) as explained in the preamble of the LRA, is to ‘provide simple procedures for the resolution of labour disputes through statutory conciliation, mediation and arbitration’ through the Commission for Conciliation, Mediation and Arbitration or through accredited independent ADR services. The central objective of the LRA is promoting healthy industrial relations. South African law also makes provision for the practice and benefits of mediation outside of the abovementioned family and labour areas.

Reality is that most disputes are resolved within a non-legal context by means of informal dispute resolution processes such as negotiation and mediation. Mandatory court-based mediation provides that whenever an appearance to defend is instituted in action proceedings, or a notice of intention to oppose is delivered in application proceedings, the matter must first be referred to mediation in an attempt to settle and resolve the dispute. In the event of the disputants being unable to resolve their dispute or conclude a settlement agreement during the mediation process, the matter is then referred back to the conventional process of litigation to be adjudicated at court, as a defended action or opposed application procedure. The implementation of voluntary court-based mediation may be the answer in settling disputes, which can be resolved without approaching our courts for litigation.

Depending on the nature of your dispute, mediation may assist one in resolving your matter in an amicable manner for both parties, speedily, and in a more cost-effective manner as opposed to dragging your dispute through the lengthy process of litigation, based on the fact that it Is the primary method of resolving disputes.

Reference list:

• Maclons W, Mandatory Court Based Mediation as an Alternative Dispute Resolution Process in the South African Civil Justice System (Unpublished, University of the Western Cape, 2014)
• Faris, JA, An Analysis Of The Theory and Principles Of Alternative Dispute Resolution (University of South Africa 1995)
• The Mediation in Certain Divorce Matters Act 24 of 1987
• The Labour Relations Act 66 of 1995
• Rule 3 of the 2011 Draft Set of Rules. Law Society of South Africa ‘Draft mediation rules’ available at http://www.lssa.org.za/upload/DRAFT%20MEDIATION%20RULES%20APPROVED%20BY%20BOARD%2019%2011.pdf

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. Errors and omissions excepted (E&OE)