5 September 2014
New court rules to benefit the public when it comes to exorbitant legal fees.
Earlier this year the Department of Justice and Constitutional Development introduced a new set of rules which aims to incorporate formal mediation in our court system. The implementation of these rules aims to enhance access to justice and introduce an affordable and less adversarial means of settling disputes.
According to Ashley Curran, a partner at Du Plessis & Curran Attorneys, the introduction of these rules is good news. By doing this, the Department of Justice is recognising mediation as a successful alternative to pricey litigation.
Curran, an accredited mediator, says, “I advise people who are considering litigation to speak to their attorneys or the clerks of the court about mediation as an alternative option before embarking on litigation.”
“These new rules which come into effect on 1 December 2014, ensure the clerks of the court inform the public of the mediation option and Magistrates are encouraged to enquire into the possibility of referring a matter to mediation.
However, the pitfall is that when a matter gets to trial, members of the public have already spent a lot of money on litigation. For that reason, it’s important for the public at large to be aware of the benefits of mediation before they consider litigation.”
“Litigation is a stressful and expensive experience. Whether it is a divorce, child custody, inheritance or commercial dispute, going to court to litigate costs a great deal in time, money and emotional well-being. There has always been an alternative way to resolve a dispute withouta protracted and expensive legal battle, through mediation.
“Mediation is a process in which a skilled and neutral third party (usually an attorney, psychologist or social worker) assists parties or families in conflict by facilitating and exploring options to settle their particular dispute. The mediator will manage the parties’ negotiations and the parties are afforded an opportunity to arrive at their own mutually acceptable solutions.
“Once a mediator is appointed, the parties attend a number of sessions with the mediator. During these sessions the parties will be given an opportunity to voice their concerns, make suggestions and explore options for resolving the dispute.”
She adds, “A mediator advises the parties from the get go that all correspondence which the mediator receives from either party will immediately be forwarded to the other party. In addition, a mediator will not meet with one party alone, unless exceptional circumstances exist, or discuss the matter telephonically with one party. This transparency ensures that the mediator is impartial and that both participants remain confident with the process and appointed mediator.”
Curran, who founded Curran Mediation, says that mediation should always be a preferred option in a dispute as it can achieve remarkable results. “Often emotions run high in family law matters and the court system is not always an appropriate forum for ensuring that the best interests of your family are protected.”
According to Curran, mediation is preferable for the following reasons:
- It is quicker than going to court as a dispute is usually resolved within a few weeks;
- Mediation is conducive to conciliation and problem solving;
- The environment is non-confrontational compared with the hostile and antagonistic litigation environment;
- The focus is on the interests of the parties;
- It is inexpensive as a couple negotiates directly with one another rather than using attorneys to represent them on all issues;
- Participants enjoy a level of confidentiality which is not generally available through litigation;
- Mediation provides a greater degree of control as participants are a part of the decision making process.
She adds, “A great upside is that mediation is significantly cheaper than going to court. A mediator typically charges between R 600 and R 1 200 per hour and generally there are three to six sessions. Each session is approximately an hour and a half to two hours long. Once the dispute is resolved and the parties have mutually agreed to the outcome, an attorney will simply walk the matter through court and have the Settlement Agreement made an Order of Court, where appropriate.
“When parties are involved in acrimonious legal battles the costs may run into hundreds of thousands of rands for both parties.
“There are two ways to approach mediation – either it can be done before consulting with an attorney, possibly on the advice of a psychologist or marriage counsellor, business coach or colleague or it can be opted for when one or both parties already have attorneys but have become despondent with the costs associated with litigation and/or the delays.
“Mediation avoids lengthy court proceedings and ultimately leads to an outcome that suits both parties – a win-win situation, rather than win-lose, as is the case with most legal battles,” concludes Curran, who may be contacted on (021) 933 9441 or 082 903 3026 firstname.lastname@example.org and readers requiring more information can visit www.curranmediation.co.za
Hare & Ehrenberg Communication
P O Box 12521 MILL STREET 8010
ON BEHALF OF
Du Plessis & Curran Attorneys
Unit 12 Harfield Village Centre 48 Second Avenue CLAREMONT 7708
For further information, please contact Rosemary Hare on (021) 438 7013 or 082 459 6226.