Category: Mediation

HOW TO AVOID A COURT BATTLE WITH MEDIATION

A2In the case of a legal dispute where the parties involved do not want to go to court, mediation offers an out-of-court alternative. On the other hand, litigation involves two parties enforcing or defending their legal rights through court. Mediation is done with the assistance of a mediator.

Who is a mediator?

The mediator is someone chosen by the parties and is sometimes a lawyer. However, the mediator doesn’t have to be a lawyer and can also be experts from other professions. The background of the chosen mediator will most likely depend on the type of dispute. In a dispute concerning the construction of a building, an engineer could be chosen to act as a mediator because of their specialised knowledge of construction sites.

All mediators are chosen from a panel of accredited mediators appointed by the Minister of Justice and Correctional Services. They would have also had mediation training, meaning they’re not random professional people from the public. The mediation clerk will help the parties decide which mediator is best for their particular dispute. As mentioned, the type of dispute will play a major role in the type of mediator appointed or suggested.

The job of the mediator is to facilitate discussions between the parties who have a dispute. Among other things the mediator assists them in identifying and solving issues.

What’s the point of mediation?

The point of mediation is to settle disputes peacefully. It has few technicalities and promotes reconciliation between two opposing parties who may have had a misunderstanding or simply a bad experience. Litigation is more time-consuming and usually leaves someone at a disadvantage. Litigation is often sort out in hospital disputes in circumstances where a patient feels they’ve been neglected or mistreated by a doctor. Instead, mediation can offer both the parties a beneficial outcome and help avoid an ugly court case. An unhappy patient may approach the hospital where they were treated and come to an agreement where the hospital can help the patient find better treatment or assist them in one of their immediate needs. The patient would then not sue the hospital, meaning the hospital wouldn’t lose money or their reputation.

What are the advantages of mediation?

The mediation process has several advantages. The most obvious one is that the parties involved in a dispute don’t have to go to court and can settle the issues much more efficiently and inexpensively. However, some people may decide to ignore mediation for litigation, which is far more expensive and prolonged. Mediation offers the added benefit of providing a “win-win” situation for both parties through negotiation and compromise.

So who is right and who is wrong?

A mediator does not declare who is right and who is wrong in a dispute nor do they give the parties a final solution by judging them. It is the responsibility of the opposing parties to find their own solution with the help of the mediator.

The mediator will draw from his/her professional experience in the particular matter and use that to advise the parties involved in a dispute. That’s why a mediator is chosen with experience in the field over which the parties are fighting about. If the parties have come to an agreement the mediator will help draft a settlement agreement, which is enforceable in law as a contract.

Reference

Justice.gov.za. Department of Justice and Constitutional Development, Civil Law. [online] Available at: http://www.justice.gov.za/mediation/mediation/ [Accessed 18/05/2016].

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

How important is it to read legal pleadings and/or notices?

A2BlogOften people only become aware of judgements reflecting on their credit records when trying to apply for loans, cellphone contracts, etc.

However, what many of them do not know, is that it is most likely due to their own negligence that they have these judgements against them.

A summons is a document that informs a defendant that he or she is being sued and asserts the jurisdiction of the court to hear and determine the case. A summons can be served for many reasons which include divorce proceedings, traffic fines, outstanding fees, etc.

A simple summons sets out very briefly the details of the case. A combined summons does not set out the details or reasons as to why the action is being instituted, and such details can be found in the particulars of claim. It is important to take notice of the fine print on the summons. This is where you will find the information regarding when and where you should file your Notice of Intention to Defend, should you wish to defend the matter. An attorney usually drafts the notice and files it at court, however, it is not uncommon for people to defend such actions themselves. If you wish to defend the matter yourself it is important to serve it on the opposing attorneys (these details are on the summons) and file it at court.

With regards to any normal summons the time period to file the Notice of Intention to Defend is 10 (ten) days and 20 (twenty) days to file the opposing papers. If the defendant resides or is located in a 160 km radius outside the court, the defendant then has 21 (twenty one) days to file their Notice of Intention to Defend and 20 (twenty) days to file their opposing papers.

Once the ten or twenty days have passed and no Notice of Intention to Defend has been filed, the attorneys will immediately apply for Default Judgement. This may result in a judgement against your name. Once a Judge/Magistrate has granted Default Judgement, a Warrant of Execution can be issued in order to attach property and/or money for the amount as stated on the summons. If the Sheriff finds that there is no property to attach in order to obtain the money, the attorneys will go ahead with a Section 65A (1) Application. This Application requires the debtor to present their income and expenses to the court and provide an amount which can be paid off monthly in order to settle their debt.

A judgement will only be removed from your record once a rescission order is granted and/or proof is provided that the amount cited on the summons has been paid in full. If the amount has been paid in full, you can contact Transunion directly and get the judgement removed for free once proof of payment has been sent.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice

Alternate Dispute Resolution (ADR): Mediation & divorce

A2blThis article will briefly set out mediation as a dispute resolution mechanism and the use thereof in disputes which arise unnecessarily at a later stage in divorce proceedings.

Mediation can be defined as the process by which a mediator assists the parties with litigation to resolve the dispute between them by facilitating discussions between the parties, by assisting them in identifying issues, clarifying priorities, exploring areas of compromise and generating options in an attempt to resolve the dispute. It must be noted that the mediator does not make a decision, even if requested to do so by the disputants. This can be differentiated from arbitration in that an arbitrator hears evidence and arguments in an adjudicative role and makes a decision as to the outcome.

Divorce is an area of law whereby recent developments have changed the approach to mediation. Previously, in the absence of a settlement agreement, issues such as children, maintenance and the division of assets could be left to the court. The Children’s Act 38 of 2005 (hereafter referred to as ‘the Act’) introduces mediation and in certain instances makes mediation a prerequisite. Section 33 of the Act states that if the co-holders of parental responsibilities and rights with regard to children are experiencing difficulties in exercising their responsibilities and rights, those persons must, before seeking the intervention of a court, first seek to agree on a parenting plan determining the exercise of their respective responsibilities and rights in respect of the child. In preparing this parenting plan the parties must seek the assistance of a family advocate, social worker, psychologist or mediation through a social worker or other suitably qualified person. The exact meaning of a ‘suitably qualified’ person is yet to be defined.

Acting Judge Brassey in his judgement in Brownlee v Brownlee in the South Gauteng High Court further stressed the need to rely on mediation in matrimonial disputes. The Judge voiced his unhappiness at the failure of both parties’ attorneys as they did not advise their clients to use mediation before settling the matter through the court. In line with this dissatisfaction the Judge capped the fees of the attorneys of both parties.

One cannot conclude that the judgement in the Brownlee case gave precedence to the use of mediation for the resolving of disputes surrounding divorces. However, one should consider the appropriateness of mediation as a dispute resolution mechanism. If encouraged from the onset it has the ability to promote the expeditious and cost effective resolution of disputes.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.

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