Mediate– don’t litigate

Whether it is divorce, child custody, inheritance, or a commercial dispute, going to court to litigate costs a great deal in time, money and emotional wellbeing. However, there is an alternative way to resolve a dispute without a protracted and expensive legal battle.

Mediation is a process where a skilled and neutral third party (usually an attorney, psychologist or social worker) assists parties or families in conflict by facilitating and exploring options to settle their particular dispute. The mediator will manage the parties’ negotiations and the parties are afforded an opportunity to arrive at mutually acceptable solutions.

Once a mediator is appointed the parties attend a number of sessions with the mediator. During these sessions each party will be given an opportunity to voice their concerns, make suggestions and explore options for resolving the dispute.

Ashley Curran, who spearheaded Curran Mediation and is also a partner at Du Plessis & Curran Attorneys, says that mediation should always be a preferred option in a dispute as it can achieve remarkable results. “Often emotions run high in family law matters and the Court system is not always an appropriate forum for ensuring the best interests of your family are protected.”

According to Curran, mediation is preferable for the following reasons:

• It is quicker than going to court as a dispute is usually resolved within a few weeks;
• Mediation is conducive to conciliation and problem solving;
• The environment is non-confrontational versus the hostile and antagonistic litigation environment;
• The focus is on the interests of the parties;
• It is inexpensive as a couple negotiates directly with one another rather than using attorneys to represent them on all issues;
• Participants enjoy a level of confidentiality which is not generally available through litigation;
• Mediation provides a greater degree of control as participants are a part of the decision making process.

There are two ways to approach mediation – either it can be done before consulting with an attorney, possibly on the advice of a psychologist or marriage counsellor, or it can be opted for when one or both parties already have attorneys but have become despondent with the costs associated with litigation and/or the delays.

Curran also advises that mediation is a more suitable environment for family disputes, particularly when children are involved and ideally should be the first port of call. “An example of when mediation should first be considered is when a married couple decides they want to get divorced and they need assistance with the redistribution of their assets as well as custody/maintenance/care for minor children.”

The Children’s Act makes provision for instances where mediation is compulsory. These are:

• Where there is a dispute between an unmarried biological father and the biological mother of the child;
• In preparation of parenting plans for children;
• Where a Children’s Court instructs a parent to participate in mediation.

When it comes to commercial matters, prevention is better than cure so when a dispute is brewing it is always a good idea to contact a mediator to assist and facilitate negotiations between companies, individuals, employers and employees.

“Mediation is ultimately an aspect of business negotiation which assists in salvaging business relationships and identifying a practical solution,” says Curran, who goes on to advise that the Department of Justice and Constitutional Development recently introduced a rule that will encourage and promote the use of mediation to settle commercial disputes before companies may proceed with legal action in the High Courts of South Africa.

“The ultimate goal of mediation is to find workable, long-term solutions that are then recorded in a settlement agreement which is signed by both parties and made an Order of Court, where appropriate.”