Mediation

Category: Mediation

Medical negligence claims?

April 30, 2019 / My Lawyer / Comments Off

In Links v MEC for Health, Northern Cape 2016 (5) BCLR 656 (CC), the Constitutional Court examined this issue and granted a judgment with potentially far-reaching consequences for medical negligence matters.

On 26 June 2006, Mr Links (“Links”) sustained a dislocated thumb for which he was treated with a cast and painkillers. On 5 July 2006, Links’ thumb was amputated. He was discharged in August 2006 and sought legal advice shortly afterwards.

On 6 August 2009, action was instituted by Links against the MEC for Health, Northern Cape, after having obtained an expert opinion confirming grounds of medical negligence. On the strength of Section 12(3) of the Act, the MEC for Health’s special plea of prescription was upheld by the Court a quo and full bench of the Northern Cape. Links was granted leave to appeal to the Constitutional Court.

The Constitutional Court held that:

“Until there are reasonable grounds for suspecting fault so as to cause the plaintiff to seek further advice, the claimant cannot be said to have knowledge of the acts from which the debt arises.”; “Without advice at the time from a professional or expert in the medical profession, the claimant could not have known what caused his condition.”

The Court accepted that at 5 August 2006, despite Links’ knowledge of the amputation which compelled him to seek legal advice, he did not have knowledge of the negligence of the staff until he obtained an expert medical opinion.

The Court held that the Court of First Instance appeared to have overlooked the question of whether Links had the full facts necessary for him to institute his claim on or before 5 August 2006. Before the end of August, Links could not have had access to independent medical professionals nor could he have had knowledge of all the material facts that he needed before he could institute legal proceedings. Links did not have reasonable grounds to suspect that his negligent treatment at the hands of the defendant’s personnel had caused the amputation of his thumb and the loss of function of his left hand. Prescription could therefore not have begun running before 5 August 2006. The Court accordingly held that Links’ claim had not prescribed, and in doing so, upheld the appeal and set aside the order made by the Court of First Instance.

An unintended consequence of this finding is that a defendant alleging prescription of a medical negligence claim, cannot show deemed knowledge on the part of the plaintiff for the purposes of Section 12(3) of the Act, without also showing when the plaintiff obtained such legal or medical advice.

The magnitude of the law of prescription is that there exists no condonation where the institution of the action in the Court is out of time. Accordingly, a creditor may not institute legal action against the debtor to recover the debt once the period of prescription has run its prescribed course, as the debt would have become extinguished by prescription. As such, once the full facts necessary to institute a claim are present, a creditor must immediately proceed to institute legal action to mitigate against the risk of the claim prescribing.

It is therefore crucial that creditors remain vigilant of the date that prescription commences to run and, in particular, the dates upon which a Court may deem a debt to fall due.

Reference List:

The Prescription Act, 68 of 1969;
Links v Member of the Executive Council, Department of Health, Northern Cape Province
2016 (5) BCLR 656 (CC);
Dutton I (2015) “The Practitioner’s Guide to Medical Malpractice in South African Law”

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)

CAN MEDIATION SAVE YOU SIGNIFICANT COSTS THAN LITIGATION?

June 19, 2018 / My Lawyer / Comments Off

Litigation is the primary method of dispute resolution in the South African justice system. Essentially, litigation is the institutionalised process adopted by the court system as the method of resolving disputes. The process is characterised by a number of deficiencies, which include the adversarial nature of the process, which often creates further conflict between disputing parties and often results in permanently destroyed relationships. Further shortcomings include the highly complex, costly and time-consuming nature of litigation. Court rolls have become overburdened due to the rapidly increasing volume of litigation at court. This often results in extensive waiting periods before matters are heard at court and further infringes the attainment of access to justice. As a result, alternative dispute resolution (ADR) processes are posed as a viable alternative to the process of litigation.

There are certain areas of law, which make provision for mediation to be used as a mechanism for resolving disputes between the parties. The compulsory practice of mediation within the field of family law is currently affected through statutes found within this area of law. The Mediation in Certain Divorce Matters Act 24 of 1987 is an example of this. This piece of legislation necessitates the compulsory process of mediation. The legislature’s rationale for incorporating the process of mediation into legislation stemmed from the critical problem that family-law legal practitioners in the past often viewed divorce solely as a legal event. One of the main objectives of the Labour Relations Act 66 of 1995 (“LRA”) as explained in the preamble of the LRA, is to ‘provide simple procedures for the resolution of labour disputes through statutory conciliation, mediation and arbitration’ through the Commission for Conciliation, Mediation and Arbitration or through accredited independent ADR services. The central objective of the LRA is promoting healthy industrial relations. South African law also makes provision for the practice and benefits of mediation outside of the abovementioned family and labour areas.

Reality is that most disputes are resolved within a non-legal context by means of informal dispute resolution processes such as negotiation and mediation. Mandatory court-based mediation provides that whenever an appearance to defend is instituted in action proceedings, or a notice of intention to oppose is delivered in application proceedings, the matter must first be referred to mediation in an attempt to settle and resolve the dispute. In the event of the disputants being unable to resolve their dispute or conclude a settlement agreement during the mediation process, the matter is then referred back to the conventional process of litigation to be adjudicated at court, as a defended action or opposed application procedure. The implementation of voluntary court-based mediation may be the answer in settling disputes, which can be resolved without approaching our courts for litigation.

Depending on the nature of your dispute, mediation may assist one in resolving your matter in an amicable manner for both parties, speedily, and in a more cost-effective manner as opposed to dragging your dispute through the lengthy process of litigation, based on the fact that it Is the primary method of resolving disputes.

References:

Maclons W, Mandatory Court Based Mediation as an Alternative Dispute Resolution Process in the South African Civil Justice System (Unpublished, University of the Western Cape, 2014)
Faris, JA, An Analysis Of The Theory and Principles Of Alternative Dispute Resolution (University of South Africa 1995)
The Mediation in Certain Divorce Matters Act 24 of 1987
The Labour Relations Act 66 of 1995
Rule 3 of the 2011 Draft Set of Rules. Law Society of South Africa ‘Draft mediation rules’ available at http://www.lssa.org.za/upload/DRAFT%20MEDIATION%20RULES%20APPROVED%20BY%20BOARD%2019%2011.pdf

CHOOSING MEDIATION WHEN RESOLVING DISPUTES

May 21, 2018 / My Lawyer / Comments Off

If I suggest mediation to a party with whom I have a dispute, am I signalling that I lack confidence in my own case?

Mediation offers many advantages to parties for resolving a range of disputes, when compared to litigation and arbitration. The mediator must however be properly qualified. Lawyers, who understand mediation, have an important part to play in assisting their clients in the mediation process.

Many disputes which parties take to court are settled just before trial, but after the heavy legal costs of preparing for trial have been incurred. However, a substantial majority of such disputes could have been resolved much earlier by mediation.

Mediation may be defined as “a confidential, facilitative and voluntary process in which parties to a dispute, with the assistance of a mediator, attempt to reach a mutually acceptable agreement to resolve the dispute.”

Several aspects of this definition require comment. Mediation usually takes place through an agreement between the parties. However, in some jurisdictions, court rules can prescribe court-annexed mediation, whereby the parties must first try mediation before they can refer the dispute to court. Unlike litigation or arbitration, where an outcome is imposed, a settlement achieved by mediation only binds the parties once they both agree to it. The mediator’s function is to assist the parties in reaching a settlement. Also, unless the agreement to mediate provides otherwise, a party may withdraw from mediation at any stage, thereby terminating the process.

Advantages include a considerable saving in time and costs. Moreover, a settlement reached by the parties is typically not just based on their legal rights, but takes their current and future interests into account. Even commercial disputes involve more than legal rights and financial payments. In the mediation process, broken relationships can be restored. Even if mediation does not fully resolve the dispute, the issues can be substantially narrowed, reducing the duration and costs of subsequent litigation or arbitration. Mediation also takes place “without prejudice”. Parties may freely participate in mediation without the danger of any concessions or admissions made in the attempt to settle being used against that party in subsequent litigation or arbitration. Because of these advantages, in countries like Ireland, a lawyer must certify that the benefits of mediation have been explained to the client before the client commences court proceedings.

Mediation can however have disadvantages. It is not realistically possible to reach a fair settlement before the parties and the mediator have adequate information regarding the dispute, which may be in documents possessed by only one of the parties. There is also the danger of a party agreeing to mediation as a delaying tactic or in an attempt to gauge the strength of the other party’s case, but with no intention of reaching a settlement.

A successful mediation requires the appointment of an appropriately qualified mediator, who should usually have some expertise regarding the subject-matter of the dispute. The mediator must be properly trained and accredited by a reputable mediation service provider and have experience as a mediator. Mediation is a highly flexible process. For example, a mediator may hold side-meetings with one of the parties in the absence of the other, in order to discuss the dispute. The mediator must win the trust of the parties regarding his or her integrity and ability to conduct the process with competence and firmness. Even if the parties have legal representation, the mediator is primarily responsible for ensuring the fairness of the process.

Lawyers are trained to play an adversarial role to win a case in court for their client. However, a lawyer who understands mediation, can provide valuable assistance in a mediation and the mediator’s task is often easier where the parties have competent lawyers. Their role includes helping the client prepare for the mediation and to understand the process, advising the client during the negotiations and assisting with drafting a settlement agreement once a settlement has been reached.

Mediation has long been used in South Africa for labour disputes, but is increasingly used for family disputes involving children, commercial matters and even in disputes regarding medical negligence. Government’s commitment to mediation’s potential for creating access to justice is demonstrated by a recent amendment to the Magistrates’ Courts Rules enabling pilot schemes for court-annexed mediation in Gauteng and the North West. Based on experience in other countries, court-annexed mediation can substantially reduce congested court rolls. Also, the SA Law Reform Commission is currently working on two separate projects involving mediation – one on family dispute resolution and the second on possible legislation to promote mediation generally. Mediation clearly has an important role to play in promoting access to speedy and affordable justice in South Africa.

References:

Brand, Steadman & Todd Commercial Mediation: a User’s Guide (2^nd edition 2016)
Irish Mediation Act 27 of 2017, definition of “mediation” and section 14
Magistrates’ Courts Rules (as amended on 18 March 2014) chapter 2
Rycroft “Settlement and the Law” 2013 SALJ 187-209
South African Law Reform Commission: Project 94 Alternative Dispute Resolution; Project 100D Family Dispute Resolution.

HOW TO AVOID A COURT BATTLE WITH MEDIATION

August 18, 2016 / My Lawyer / Comments Off

In 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].

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

February 12, 2015 / My Lawyer / Comments Off

Often 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.

Alternate Dispute Resolution (ADR): Mediation & divorce

April 15, 2014 / My Lawyer / Comments Off

This 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.