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Mediate, don't litigate

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Based on personal experience, where he was a litigant in a matter relating to the use of pesticides on his wine farm, he said it goes way beyond the actual money. “For the first time, I came to understand what it is like to be involved in litigation. It ends up consuming your life, your time, your productivity. That, and not the legal fees, is the greatest cost of litigation,” said Mr Nelson. He said because our legal system is adversarial in nature, it promotes conflict rather than reconciliation between litigants.

“Justice is done when a result is achieved which is morally right and fair, and that is what I imagine attracts most young people who choose to study law. It is the job of a lawyer to help people to get justice, and while winning a case gives a great sense of personal satisfaction, it delivers nothing to client.”

Mr Nelson’s epiphany came after his case against the chemical supplier had been concluded, when he contemplated the real cost of the litigation. “I won the case, and when I received the cheque, I donated it to a local charity, because I was just so relieved that it was over. It was then that I began to ponder alternatives to litigation.”

He investigated arbitration and mediation as dispute resolution alternatives, and his research led him to finally settle on a mediation model that focuses on getting the disputants to arrive at an agreement acceptable to both parties. He started an arbitration and mediation centre on the farm, but experience quickly led him to conclude, that mediation where a mutually acceptable solution is facilitated between the disputants is best.

“With litigation, the parties end up further apart, rather than closer together. With mediation, we focus on narrowing that gap,” Mr Nelson explained. “Mediation is more of a transformative process, because it introduces creativity in finding solutions, and it helps to heal relationships. Whereas litigation focuses on rights, mediation focuses on interests of both parties.”

Elaborating, he said: “With mediation, we try to create an environment, a space in which parties can find a solution that both find acceptable, and that is morally right and fair. International statistics indicate that nine of out 10 matters referred to mediation are successful, and of the 90%, 70% are resolved within a single day.”

Mediation fees, which are split 50/50 between the parties, seldom exceed R20 000, he said, which is less than 1% of what typical litigation costs.

Turning to the actual mediation process, Mr Nelson described the 10-step procedure followed, which is designed to bring disputants together rather than to drive them further apart, in finding a mutually acceptable solution.

Mediation proceedings are confidential, are never recorded, and they cannot be used in, nor subpoenaed, for use in any subsequent court action. Once the parties agree to a resolution, it is reduced to writing and becomes legally binding. “Such agreements can be, and often are, made an order of court,” he explained.

A total of 40 pieces of legislation exist on our statue books that support mediation as an alternative to litigation, and the implementation of court-annexed mediation at pilot site courts in Gauteng and North West will start on December 1, which means that our judicial authorities are serious about mediation as an alternative to litigation, according to Mr Nelson.

“I still litigate, but only after the disputants have rejected mediation as an alternative,” said Mr Nelson, adding that mediation can be invoked at any point in the process, before, during or after litigation. He cited a recent case where two well-known Stellenbosch wine producers had litigated over the matter of the name for a wine.

Judgment was granted in favour of the plaintiff, but the defendant secured leave to appeal to the full bench of the Cape High Court. Faced with legal bills in excess of R1.5 million, and the prospect of the Supreme Court of Appeals overturning the original judgment, the parties agreed to mediation. The matter was resolved whereby the defendant could continue to produce wine in limited quantities under the disputed name once every 10 years, and the plaintiff agreed to the original judgment being set aside, and paid his own legal bills.

“The parties were offered the option of mediation on more than one occasion during the proceedings,” said Mr Nelson, “but they initially refused it, but once they did agree to mediation, the matter was resolved very quickly. Sadly, can be imagined, this came at great expense to the relationship between the parties.”

In the panel discussion, the applicability of mediation to the agricultural sector was discussed, and it was pointed out that it may not be appropriate for farmworkers because of the 50/50 split of fees, but Mr Nelson noted that as more mediators are trained – Mr Nelson runs a mediator training programme at his estate under the auspices of the University of Cape Town – there will be those who are prepared to mediate for no fee.

National ethical trade co-ordinator for Fruit South Africa, Coleen Chennels, noted an initiative is under way to give farmworkers access to mediation. “We’ve asked the CCMA (Commission for Conciliation, Mediation and Arbitration), to make their mediators available to farmworkers where they live and work. That way, if a farmworker is involved in a dispute with an employer, it will be possible to pursue mediation free of charge, in situ, rather than having to travel to a main centre which is currently the case,” she said.

Mr Mooi said with the current system, when disputes arose between farmworkers and employers, it invariably resulted in separation. “Irrespective of who wins, the farmworker usually ends up being evicted,” he said. “With mediation, it may well be possible to prevent that in the future.”

Mr Nelson encouraged the delegates to promote mediation as an alternative to litigation for dispute resolution, saying mediation courses are increasingly available, like UCT’s course, which is more broadly commercial, as well as the course run at the Nelson Mediation and Peace Centre on the farm, which is aimed at the agricultural sector.

Written by Norman McFarlane You are reading Mediate, don't litigate articles

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