What is Litigation exactly? 

Litigation entails parties airing their respective evidence, either in person or by way of affidavit, in a court of a law where a presiding officer, either judge or magistrate, will then make a decision in favour of one of the parties. Litigation is an adversarial trial system and one typically followed in South Africa when a dispute arises, with the litigants duking it out in court to obtain their remedy. 

The litigation process can often become not only time consuming, costly but also emotionally draining especially when cases are of a more personal nature such as between family members and/or children i.e. divorce matters where the primary residence and contact of minor children is in dispute. There may also be additional procedural hurdles to overcome during litigation that may hinder the process such as complying with practice directives issued by our various court divisions which could literally stop a litigious matter from even being heard in the first place. 

Litigious matters may also require the need for expert evidence to be tendered. This is particularly applicable to personal injury claims against insurers such as Road Accident Fund claims or medical negligence claims where the need for expert medical evidence is required. In such claims, not only will the claimant need to undergo medical assessments by his or her own experts but will also need to undergo similar assessments by whomever the insurer elects. This can easily result in quite a bit of overlap in evidence and as well as quickly escalate the costs of litigation. However litigating parties hardly ever agree on the appointment of one joint expert unless in very specific and specialized circumstances. 

It is interesting to note that a similar need for expert evidence can arise in litigious disputes involving children, when parents or guardians feel the need to each appoint their own expert to firstly assess the child and then provide a report as to which parent or guardian would be suited to act as the daily primary care giver for their child. These reports and even the assessment process more often than not, tends to further alienate the parents from each other and further exacerbates the animosity in an already emotionally charged situation. This does not even take into account the effect that the assessments and interviews has on the child. 

Should a party proceed with litigation, he or she could also run the risk of the presiding officer not deciding the matter in his or her favour which could then mean an adverse costs orders being awarded against the plaintiff/applicant. 

What about Mediation?

Mediation on the other hand is a process undertaken by parties in a dispute who wish to resolve their differences before embarking on the litigious route. It can often result in the successful resolution of a dispute without breaking down the inter-relationship between parties such as between employer and employee or between feuding parents over a child. 

However it is important to note that not only is mediation a voluntary process but also requires the consent all parties involved before any mediation can take place, after all you cannot attempt to successfully mediate with an opponent who refuses or is reluctant to even consider a differing point of view other then their own. Nor can you force a party to attend mediation, as this would go against the very nature of the concept of mediation.

Mediation can also be more cost effective then litigation, as parties utilize the services of mediator, who has been jointly selected to hear both sides of their disputes and assist them to find common ground. This is in addition to the mediation process also being less time consuming than litigation as there are no court formalities to follow, parties merely agree on a mediator, arrange a date with the appointed mediator and arrive on the day ready to present their version of the events to the mediator. Although attending mediation may require more than one session, it is simply a case of finding the time available that suits all parties. 

Mediation as an alternative to litigation, therefore seems like a ‘’no-brainer’’ with the parties often able to proceed to litigation if mediation talks fail. 

So when should you mediate and when should you litigate?

On 25 August 2009, Acting Judge Brassey in the South Gauteng High Court, delivered a judgment containing scathing remarks against the legal representatives acting for the husband and wife in this contested matrimonial matter MB v NB, going so far as to say:

‘’

1. 57.In short, mediation was the better alternative and it should have been tried. On the facts before me it is impossible to know whether the parties knew about the benefits of mediation, but I can see no reason why they would have turned their backs on the process, especially if they had been counselled on the matter by the attorneys. What is clear, however, is that the attorneys did not provide this counsel; in fact, in the course of the pre-trial conference they positively rejected the use of the process. For this they are to blame and they must, I believe, shoulder the responsibility that comes from failing properly to serve the interests of their clients.’’

As recently as 9 March 2020, the Uniform Rules of Court have been amended to introduce the Rule 41A notice. This notice calls for all parties who bring either an application or action in the high court, to serve a notice in terms of this rule, together with the summons or motion, setting out whether the plaintiff/applicant is agreeable or opposes referring the matter to mediation, with reasons for such agreement or refusal. While an opposing party cannot be forced to attend mediation and would rather litigate, a presiding officer may consider any unreasonable refusal to an offer to mediate in a litigious matter that should have been resolved in mediation and penalize such refusal with a costs order.   

In the event that the parties agree to undergo mediation, then the time periods applicable in terms of the Rules of Court are suspended pending the outcome of the mediation process. 

Mediation is currently applied in other courts of law specifically the maintenance courts, where maintenance clerks assist the parties by initially trying to get them to come to an agreement on suitable maintenance to be paid for their child, by taking into account the child’s needs and the respective incomes of each parent. Similarly, the Children’s court utilize the services of the Office of the Family Advocate, which advocates have a wealth of experience, in order to find common ground between two opposing parents by making sure that the ‘’best interest of the child’’ are upheld. 

It therefore appears as though our law is moving towards a less adversarial system, directing prospective litigants to considering mediation before litigation. 

So, if you’re at a crossroads as to whether you should mediate or litigate, contact us and we can advise you on the way forward.