Mediation in the form of facilitated settlement negotiations when disputing parties are already involved in litigation is not mediation in its true sense. Mediation is future oriented with a focus on creating additional value for the parties involved in the dispute while case settlement is primarily rights based and focussed on a limited outcome. A mediated outcome in the form of a facilitated negotiation will always be superior to a litigated outcome. The outcome to litigation is certain to the extent that a third party (judge, arbiter or magistrate) will impose an outcome on the parties and there is absolutely no potential for any of the benefits associated with mediation to be achieved. On the other hand, facilitated negotiations by a mediator or pure mediation in a litigation context, will always have the potential to not only resolve a dispute between parties but to also create additional value and a future oriented settlement.  A mediator, as an independent third party, does not enter the arena with all the baggage associated with a drawn out process of litigation and he or she is therefore in a much better position to conduct the process of settlement negotiations impartially and for the benefit of all the parties involved therein. Formal training as a mediator allows the mediator to utilise his or her skills to the best effect and for the benefit of all parties involved in the dispute.

A few years ago I wrote a short article about the use of mediation as a tool in resolving disputes within the context of litigation (Mediation as a Last-Ditch Attempt). The focus of that article was primarily on identifying the most appropriate stages within the litigation process when mediation could be used to good effect to resolve disputes, or at the very least, to limit the number of issues that eventually go on trial. The three stages I discussed included the period before a summons is issued, post-discovery of documents and finally, on the day of the actual trial. The characteristics of each of these stages differ as do the likelihood of a successfully mediated resolution. The biggest influencing factors are the state of the disputing parties’ interpersonal or business relationships, their relationships with their respective legal representatives and the costs incurred or still to be incurred.

There is, however, another stage in proceedings where an independent third party is in a unique position to encourage the parties and their legal representatives to resolve the dispute through settlement negotiations or ideally, through mediation.

Court annexed mediation, as implemented in a number of Magistrate’s Courts, is a great initiative and one that is widely supported within the profession. The primary advantage of Court annexed mediation is that it is implemented as soon as a matter becomes opposed and, as a result, it can potentially save the litigating parties substantial amounts in legal costs and damage to relationships. The down side to Court annexed mediation is however that the parties have at this stage not yet completed discovery or full analysis by experts and as such they are not yet in an ideal position to properly assess the merits of a case. The Clerk of the Court who is tasked with referring matters to Court annexed mediation is in an even worse off position as he or she has to rely solely on the filed Pleadings in order to assess the matter’s suitability for mediation. If the merits of a matter could be properly assessed by a highly experienced and independent third party at that stage of proceedings when all the facts are before a Court, then the true value of mediation within the context of litigation could be realised.

A system of judicial case-flow management was implemented as a pilot project in Gauteng, KwaZulu-Natal, Western Cape and the North West in October 2012. The primary aim of the project was to address the excessive delays experienced in bringing matters to trial and the system has been very successful in this respect.

The process of active case management is done in terms of Rule 37(8) and the parties receive notice thereof from the Registrar approximately fourteen months after one of the parties apply for a trial date. In terms of the formal notice the parties are instructed to conduct a formal pre-trial meeting and to file a minute of such meeting on the Court file before the file is submitted to the appointed Judge. This pre-trial primarily deals with aspects such as discovery of documents, expert summaries and requests for trial particulars but the potential settlement of the dispute also form part of the pre-trial meeting between opposing attorneys. There is a drive from members of the profession in Cape Town to have the requirements of Rule 37 expanded so that a stronger emphasis is placed on the settlement and potential mediation of disputes but it may still take some time before any such amendment is implemented.

Unfortunately most attorneys deal with the Rule 37(8) proceedings as an administrative process that is simply aimed at complying with the Judge’s requirements for practical preparation for trial and very little or no thought is given to their prospects of success, the costs involved or to the potential settlement of the dispute.

The appointed Judge meets with the parties’ legal representatives regularly to assess the progress made and this puts them in a unique position because through this process they become familiar with the broad merits of each particular matter. Judges are therefore able to independently assess the necessity of, or prospects of a settlement being reached without the need for the matter to continue to trial. All Judges encourage parties to attempt to settle divorce matters and it is easy to see the benefit in settling divorces before they go on trial but commercial disputes are mostly left to the parties’ legal representatives to drive to conclusion through the litigation process. In some instances there is an easily identifiable and mutually beneficial resolution available to the parties while in others the potential costs involved in litigation or the reality that one of the parties has little or no prospect of achieving their desired outcome is clear for a Judge to recognise and it is these matters that are ideally suited to mediation.

Every Judge’s approach to the process is unique and we find that some Judges also treat the process as an administrative one. To a large extent though, most of the Judges are practical in their approach and have no hesitation in strongly recommending to parties that they should engage in focused settlement negotiations or mediation before the matter comes before him or her again. In terms of the current rules a Judge cannot direct or order the parties to mediate a dispute but the nature of the process and the relationship between legal representatives and Judges is such that legal representatives invariably follow a Judge’s recommendations.

We should never lose sight of the fact that the process put forward in this article is not true mediation in the strictest sense of the word. Facilitated negotiations in this context will almost never achieve all the benefits of voluntary future oriented mediation but it can limit the damage done by forging ahead with litigation when an alternative option, which is much less damaging, is within reach of the parties.

Increasingly trial judges are embracing their unique position to guide the disputing parties to a more sensible approach to dispute resolution. This evolving development in our justice system is very encouraging and deserves the support, participation and encouragement of all litigation attorneys, advocates and judges.

MC Coetzer July 2016

For more information contact:

MC at mc@chrisfick.co.za : 082 349 4582 / 021 424 3937 ext 311

Chris at chris@chrisfick.co.za : 082 491 0032 / 021 424 3937 ext 313

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)

MEDIATION IN LITIGATION
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