Steps to take to avoid going to court
20 Sep 2021
Here is how you can reach a settlement and keep your dispute out of litigation
Going to court is costly, time-consuming and should be the last resort. We show you ways to resolve disputes without having to go to court.
You can avoid litigation when it comes to important matters like getting a divorce by committing to either a negotiation, mediation or arbitration process. Going to court is a time-consuming process, which can stretch over a long period and is heavy on the pocket.
Negotiation is an open process whereby conflicting parties sit down to resolve a dispute with the aim of reaching an agreement or settlement. This process is conducted by the conflicting parties with representatives present. It will result in a positive outcome if both parties choose to work together with the same goal in mind – to reach an acceptable solution.
There are five stages in the negotiation process:
Preparation and planning
Here both parties will accumulate the information needed for effective negotiation. Information is powerful as it helps give validity to claims. Both parties look into each other’s history to pre-empt a starting point. The one side is figuring out how low their introductory cash offer can be, while the other side is trying to figure out how high the other party will go.
At this point, all procedures are defined and rules are set. Both parties must commit to this stage which is likely to strengthen the process.
Clarification and justification
Demands are now put on the table and the negotiations begin. This is when preparation will have played a crucial role because you will be armed with all the information you need to explain why your demands should be met.
Bargaining and problem solving
Negotiations cannot be conducted by just anyone – they need people with particular skills, one of which is problem-solving.
Closure and implementation
A structure is decided for the actualisation and monitoring of the agreement from both sides.
Mediation is very similar to negotiation, but there is a neutral third party involved in overseeing the process.
On March 9 2020, an amendment to the High Court Rules (41A) came into effect, which makes it mandatory to explore mediation at the onset of any legal matter before moving towards litigation. This transformed the way disputes are resolved in South Africa and put a halt to lawyers rushing towards litigation without exploring other means of resolution.
The object of mediation is settlement – it is a process of negotiations facilitated by a neutral mediator. Under Rule 4A, each applicant must deliver a notice with every new action of motion. The respondent must state whether or not they are open to mediation. If one party (in this instance presuming there are only two) does not agree to arbitration, then the process cannot go forward. If the process does go forward, everything disclosed, both oral and written, is considered confidential and inadmissible in court.
Labour, community and family mediation in South Africa are quite well established – other areas like the commercial and business realm are lacking. Many are ignorant about the nature and role of mediation which is what prevents its success. The Dispute Settlement Accreditation Council (DiSac), established in 2010, is a volunteer association of mediation and arbitration. They work on international best practice and align with international agencies to develop industry standards. They work to fill the knowledge gap so that mediation or arbitration not only become commonplace, but are also a successful process and litigation is avoided.
The actual needs of the people behind the dispute are addressed. Often parties going into a dispute have clouded judgement and cannot see the negative and detrimental impact that a prolonged process of litigation will have, which is also not cost-free for either party. Litigation will result in a decision made and imposed on both/all parties, while mediation is a platform for both parties to be actively involved in the outcome – by voicing their grievances, thoughts, options and helping to determine the final decisions reached. A successful conclusion is very much reliant on the mediator being impartial, as well as the willingness of both parties to reach a conclusion.
This process is also overseen by a neutral third party, but the outcome of the matter is not decided by the parties involved but rather by the arbitrator. The arbitrator hears evidence from both sides which they can request in writing if they choose. After hearing both sides, the arbitrator will make a decision in the same way a judge would. Decisions are considered final and enforceable in the same way a court judgement is.
Negotiations and mediations are often the less expensive route, followed by arbitration and then by litigation – all will vary according to the costs of the professionals you choose to hire. Avoid going to court and rather explore one or each of these avenues before litigation.
With Legal&Tax you’re not alone
We understand the process of going to court might be overwhelming, which is why we are here to help you avoid litigation. Contact us for more information.
Disclaimer: The content of this article was correct at the time of publishing, but the legislation or underlying information forming the basis of this article may have changed. You should always speak to a qualified Legal&Tax advisor before making any decisions.
Article sourced from Legal&Tax.
Written by Vuyokazi Mpela, Legal Advisor at Legal&Tax.
See also:(This article is provided for informational purposes only and not for the purpose of providing legal advice. For more information on the topic, please contact the author/s or the relevant provider.)