Are you in the midst of a messy disagreement and both parties staunchly refuse to yield? Perhaps the dispute has become so unpleasant that something has to be done to bring a resolution. What are your options? In most cases, going to court should be avoided because it is a costly, time consuming and draining experience. Due to this, an alternative to litigation should be attempted in order to resolve the matter outside of the courts.
Recently, mediation was ruled as the preferred alternative to litigation in South African Magistrates’ Courts. Because of this, companies who take matters straight to court without first trying resolve disputes through mediation may now have to explain themselves to their stakeholders. It is recommended that these steps be followed to resolve disagreements:
Negotiation, failing which
Mediation, failing which
Arbitration or Litigation
Negotiation
The first step is always to have an open, reasonable conversation to try and negotiate a solution. It is often only when the parties involved realise that there is a need to be flexible and accommodating that they are able to look at negotiating an agreement. But, what if this is route is unsuccessful?
Mediation
Mediation is a voluntary and confidential process that can be used in a range of sticky situations including staff conflicts, contract disputes, family disagreements or issues between neighbours. A neutral third party is called in to assist with reaching an agreement. The qualified mediator is unbiased and is there as an agent to open the doors of communication, explore all the alternatives and give resolution recommendations. The focus of a mediation meeting is to reach a solution that is agreeable to both parties. The mediator simply gives a report, the responsibility for taking action to resolve the matter lies with the people involved.
Advantages of Mediation
Mediation helps preserve relationships between the people involved, which would otherwise may well have been destroyed.
The cost of mediation is shared between the parties involved but it is far less than legal fees, should the matter have to be taken further. The dispute can be resolved fairly quickly.
There isn’t a judge who chooses a winner, instead the aim is to reach an agreement that benefits both parties.
What is discussed remains completely private, unlike court proceedings which go on public record.
Should mediation be unsuccessful, the representations made during a mediation process cannot be used should the matter move to court.
Arbitration
In essence, arbitration is another alternative to court action in which an independent third party is given the power make a decision on the dispute. An arbitration hearing may involve the just one arbitrator or a tribunal of arbitrators. The parties involved are each given an opportunity to provide testimony and to present any relevant documents and thereafter the arbitrator will make a judgement as to who wins the case.
Advantages of Arbitration
There is flexibility and arbitration hearings are held at places and times that suit everyone involved.
Unlike lawsuits that can drag on for years, a conflict can be quickly resolved through an arbitration process.
Arbitration is less formal and is typically not bound by strict procedural rules so an arbitrator has the opportunity to take the time to hear and consider all the facts. He or she usually attempts to come to a practical, fair compromise.
Arbitration hearings are closed and the media and the public are not allowed to attend. A final decision is made that remains confidential and cannot be not published.
If you are unsure of which dispute resolution route to take, contact Marshall Attorneys who have the knowledge and experience you need.