You’ve followed all the advice, acted as a prudent businessman or woman, ensured all your business dealings are in writing, signed terms and conditions and generally behaved like the model citizen. The challenge is that the same cannot necessarily be said of your business associate. If your business associate breaches your agreement, what then? The law may be squarely on your side, your contract may be watertight, the terms may be clear. But enforcing your rights still requires you to take legal action. This means commencing action in a court of law. And it is well-known that South African courts are battling to keep abreast of the cases that are brought to them for resolution. It can be months, sometimes years before your matter reaches trial. During this time many things can change, not least of which would be your rapidly diminishing bank account as you struggle to keep up with the payments to your attorney. Little wonder so many litigants ask: Is there an alternative to litigation? There is indeed a solution that you may wish to consider: voluntary mediation in the magistrates court.
What is mediation? Mediation is a process whereby an independent third party (the mediator) is identified and appointed to assist the parties to resolve the dispute and reach a fair settlement.
The Magistrates Court Rules allow for an alternative to formal litigation, in the form of mediation. Not all courts provide for mediation, so you would need to first confirm this with your attorney. The basic steps of this process are set out below. You can also ask your attorney to clarify the process.
Step 1: Decide to mediate
Litigation is a lengthy, costly and stressful process for both parties. If you want to open up the discussion around mediation then chat to your attorney, who will in turn contact the opposition attorney, who will liaise with the opposing party. You both need to agree to pursue the mediation route. You can’t force the other party to enter into the mediation process.
Step 2: Consent from the court
If the trial has already commenced you must obtain consent from the court before you can proceed with mediation.
Step 3: Written notice to the clerk of the court
Your attorney will submit a written request to the clerk of the court for the mediation process to be initiated. The clerk will notify the relevant parties to the action and call on them to attend a meeting within 10 days of the request, where the clerk will confirm that both parties consent to the mediation process. Where summons has already been issued, the clerk will file a notice in the court file, requesting that the action be suspended until the end of the mediation process.
Step 4: Appointment of a mediator
The parties must agree on the identity of the mediator. If the parties aren’t in agreement the clerk will appoint one.
Step 5: Mediation Agreement
The parties will be required to sign a Mediation Agreement which will confirm that they consent to the mediation process.
Step 6: Filing statements and other documents
The plaintiff (the person who instituted the action) is required to file a statement of claim with the clerk, and the defendant (the person opposing the action) is required to file a statement of defence. If the parties have chosen to pursue mediation after the summons was served, then the plaintiff’s summons and the defendant’s plea will be used instead of these statements. The parties will also be required to file any other documents or supporting evidence on which they intend to rely during the mediation.
Step 7: Mediation Process
The mediator will consider all the evidence, suggest options, and generally guide the parties towards a suitable solution. Note that the mediator is not an arbitrator or judge, and so s/he cannot impose or enforce any solution. The parties are entitled to use legal representation, but this isn’t mandatory. It is worth noting that this process, including all discussions and documents, is conducted on a confidential basis, and nothing that is raised during mediation is admissible in court. The purpose of this process is to try and get the parties to reach a settlement without taking the dispute to trial.
Step 8: Outcome
If the parties are able to reach a suitable settlement, the mediator will assist the parties to draw up a Settlement Agreement. The Settlement Agreement must be given to the clerk of the court, and it will go to a magistrate who will make a note in the court file, confirming that the matter has been resolved. If it’s included in the Settlement Agreement the magistrate may also make the Settlement Agreement an order of court. If the parties are unable to reach a settlement the mediator will submit a report to the clerk of the court, confirming that the matter was not resolved. The parties will then continue with the court process, and the matter will ultimately be decided by the magistrate following the trial.
Mediation is intended to be quicker and less expensive than following the traditional litigation route. But it does require the willing participation of both parties before an amicable settlement arrangement can be agreed on.
Please note that this information is supplied for general information and does not constitute legal advice. It is advisable for you to contact a legal practitioner for guidance in respect of your unique requirements.