In property - and other - disputes, mediation is often preferable to litigation

A recent court decision, Brownlee v Brownlee, in which the judge imposed a punitive costs order because a party and their attorney had not been willing to try mediation rather than litigation bodes well for the fostering of a more active mediation culture in South Africa.

This was said recently by Grant Gunston, Senior Director of Grant Gunston Attorneys and Conveyancers - and, he added, this should be of special interest to the property sector where litigation is all too common and the where the cost of delays has time and again derailed what would otherwise have been a profitable development or deal.

Gunston said that South Africans are too ready to litigate through the two recognised channels, i.e. either by going to court or by opting for an arbitrator, “but with both of these processes the disputants end up having to accept a judgement imposed on them by a third party, which might not actually suit either party”.

“With litigation and arbitration a judgement is given on the basis of the relevant law rather than with reference to the needs and requirements of the two parties involved. It can, therefore, be a less than humane process. Mediation on the other hand, can be more creative and sensitive.

“Furthermore, litigation squanders time: it will usually take a year to get a case heard in the Magistrate’s Court and about three years to come before the High Court - by which time the positions and enmity of the disputants are likely to have hardened.

“On top of these disadvantages is the undeniable fact that litigation/arbitration can be very expensive. The viable alternative to litigation is mediation.

“In the mediation process,” said Gunston, “the mediator does not impose a decision, he assists the two parties to come to terms and to find a solution that both can live with. The process frequently results in their enmity being reduced and it carries with it the great plus factor that it is usually completed in a much shorter space of time, possibly in a matter of days or weeks, thereby reducing emotional stress, allowing business to proceed and, most importantly, costing a great deal less.”

Although some lawyers are trained mediators (Gunston himself is accredited with both the UK ADR mediation group and South Africa’s Equillore mediation and arbitration group), the process does not necessarily require a lawyer. Competent mediators, said Gunston, are being trained by such organizations as the University of Stellenbosch’s Graduate School of Business as well as the Law Society of South Africa - and these mediators have a good track record.

“The statistics reveal that over 60% of cases referred to mediation were resolved either during the process or shortly thereafter, in most cases at least partially as a result of mediation. Attorneys have a duty to protect their clients' interests and opting for mediation can be a way to keep their clients’ costs down.”

Gunston emphasized that although he had referred primarily to the advantages of mediation for the property sector, mediation can be - and is - applicable to any form of dispute, e.g. family matters as well as commercial disputes and, he said, it is steadily gaining in popularity.

“Not all disputes are suited to mediation, but what is becoming clearer is that it is a mechanism that should be taken seriously as a dispute resolution tool.”

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