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New Court Rule says mediation must be considered before you start litigation
As from 9 March 2020, it's now compulsory for individuals to inform the court in writing that they considered mediation as a means to resolve the legal matter. Rule 41A is an amendment to the Uniform Rules.
In terms of this amendment, the legal representative has to now declare that he/she has advised his/her client to consider mediation as a means of attempting to resolve the dispute, which is the subject of the proposed proceedings.
Whilst mediation is in progress, all time limits in the litigation process will now be suspended. Both litigants are required to deliver a joint minute to the court, in which they indicate to the court that they have referred the dispute to mediation.
Being in the litigation industry for my entire professional life, I've come to recognize the value and benefit which mediation offers to disputants. I trained as a mediator about ten years ago and over this period of time I have gained greater insights into the benefits of mediation.
The tools needed to act as a mediator is off course completely separate to that of a litigation practitioner. A mediator is required to facilitate dialogue between the disputing parties by being a neutral third party, whereas as litigation attorney your primary objective is to get the outcome anticipated by your client.
The litigation division in our law firm continues to be the mainstay of the legal services which we offer. There are also a number of non-litigious services which our firm provides. Mediation is one of these services. It's a known fact that litigation can be costly. Often these costs are not budgeted for. Some litigants find the stress of legal dispute itself, coupled with the rising litigation costs to be both draining and overwhelming.
Apart from the amount of money you will save in litigation costs, mediation offers a number of other benefits. These include saving time and allowing parties to be in control of the outcome of the dispute, rather than leave it to the court to pronounce upon.
The details of the dispute can remain private. I recall how the concept of mediation was initially met with reluctance from a number of litigation practitioners. Many of them mistakenly considered it to be a soft option and to be used only if their case was a weak one. They felt that suggesting mediation could send out the wrong message to the opposition.
However, in many countries across the globe, mediation is seen as being a viable and effective alternate dispute resolution mechanism. With the aid of a qualified mediator, the parties can work through the issues and find solutions which are mutually agreed upon.
The parties may agree to refer their dispute to mediation at any stage before judgment is given. Although the new Rule 41A does not compel a party to mediate, it's possible that in the event a litigant or their attorney decide to ignore the Rule, they could end up with the court making an adverse costs order against them for their failure to consider mediation.
Contact me to act as your mediator in any dispute whether it is contractual, commercial, divorce, labour law, property, or any delictual (damages claim).
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