Attorneys As Gatekeepers Of Disputes

The KZN Society of Mediators is an association of dispute resolution practitioners of South Africa, based in Durban. I was honoured to do a presentation at its annual conference a few weeks ago.

The topic was a look at the role that attorneys have as the gatekeepers of disputes and how that role could be used to encourage a disputant to consider mediation as means to resolving the dispute.

Normally the attorney is the first person to whom a person with a dispute would approach and the attorney could easily influence their client towards or away from mediation. Attorneys therefore remain a crucial cog in the dispute resolution landscape.

Their role as the gatekeeper becomes pivotal and could have far reaching consequences not only for the disputants themselves but also others who are affected by the dispute, for example children in an ongoing divorce. It is not uncommon for a person who is going through a divorce to be suffering tremendous emotional trauma.

This, at a time when they need have a clear mind so that proper decisions are made as it would affect their future and that of their family. Any dispute be it between business partners, commercial contracts, labour disputes, neighbour problems or family law matters carries emotional baggage which could potentially cloud one's ability to make reasoned and sound decisions.

I was drawn to mediation as an alternative dispute resolution back in 2010 and became an accredited mediator in 2011. During this time I encountered a number of my litigation colleagues who because of their grounding in the adversarial litigation system refuse to consider mediation, erroneously believing it to be a soft option and only to be considered if they have a weak case.

Mediation takes the decision-making authority away from a presiding officer and places it squarely with the parties themselves to work out a solution. There are off course those matters which will not resolve at mediation and will need to go to court to be finalised, especially if a precedent ruling is needed, but this is the exception rather than the norm.

Even though there being a strong awareness of benefits of mediation, global research has shown that not all gatekeepers endorse mediation to their clients. Our High Court Rules have introduced a requirement for a litigant to inform the court at summons stage whether the matter can be referred to mediation or explain to the court why they do not believe that mediation would be successful. If they fail to do so, they risk an adverse costs order being made against them.

Sadly even though this provision exists in our Rules, compliance with this requirement is sometimes dealt with simply as a "tick box exercise", without any real attempt of resolution of the dispute. Some commercial lawyers may even discourage mediation using their gatekeeper status. It is a fallacy that attorneys have no place in mediation.

They can assist the client in preparing for the mediation, provide the client with the pros and cons of any offer which may be considered, prepare an opening statement for the mediator, if need be.

They could even be present at the mediation as an observer and be available to provide the client with legal advice, as the mediator will not provide any legal advice to the parties. Mediation allows the parties to manage their relationships post the outcome of the dispute.

As mediation is confidential, no dirty linen needs to be aired in public and in most instances provides a far better alternative to litigation. It is by far more cost-effective and less time consuming than a trial and allows the parties to control the outcome of the process and ultimately to aim for a win- win on both sides.

For a list of accredited mediators visit the website https://kznmediators.com.

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