Mediation

Mediation has become more frequent in contract and civil damage cases. There are professional mediators, or lawyers who do some mediation for substantial fees, but the  costs may  in some cases still be less than having  a court decide and may result in an early settlement. Mediation does however not always result in a settlement.

The overriding principle is that any matter can be settled by agreement between the parties at any time and this agreement can then be made an order of court.

To relieve the burden on courts it is desirable to settle all disputes of fact or law that can reasonably be disposed of without having to let a court decide this. When court rolls are full, as is the case, chronically, ventilating issues at conferences between the parties can shorten litigation drastically.

It is also in the parties interests to put a number on the amount of costs due by the successful party as part of an agreement, because taxation increases the costs by roughly 11% plus VAT. Taxation dates may be far in the future and further delay the end of the matter. Taxation of costs may lead to further litigation and delays when a party dissatisfied with the taxing master’s allocatur engages in a review of taxation which may drag out over many months if not many years.

The ideal situation in a dispute is when both opponents have legal teams whose opinion reflects the judgment a court would give should the matter be brought before it for a decision.  The court would then simply agree with the opinions of the parties and confirm their settlement agreement with an order. An order by a court is important to address the risk of prescription of a claim and is necessary to proceed with the enforcement of the agreement that was made an order.

When the parties reach an out of court agreement which is not confirmed by a court order, the matter, if no summons was issued may prescribe or make proof difficult and costly. Such an out of court agreement can not be enforced with the available procedures which have many protections, developed over decades, built in, such as criminalizing the act of absconding once a judgment is given.

The role of the attorney is to protect the interests of its client, but as an officer of the court the primary duty is towards the courts and the interests of justice.

In discharging this duty the attorney is bound by fairness. In my view matters within the jurisdiction of the magistrates’courts (below R400.000.00) can be mediated between the parties’ attorneys.

The benefit of mediation by a professional mediator only kicks in with complex high court matters.