Mediation of disputes – an attractive option in uncertain times

By 29th Jul 2020 Commercial Law

Access to our courts and other quasi-judicial bodies can be a long and expensive process.
In the face of the Covid pandemic, access to justice becomes even more precarious than usual.

And yet, the pandemic increases the potential for disputes of all kinds. Tenants face difficulties
adhering to their obligations to landlords, employees are confronted with the prospect of job losses
and it is no longer business as usual when it comes to performance of commercial contacts.

In these uncertain times, choosing to resolve a dispute outside of court, with the help of a neutral
third-party mediator can bring about speedy resolution and save both time and costs.

Often, parties are unable to resolve a dispute amongst themselves and benefit from the intervention
of a commercial mediator, who is trained to guide the process and assist parties to generate
creative, long-lasting solutions to problems.

This is done without forcing an outcome on the parties, who are free to leave a mediation without
having reached agreement, if they wish. Mediation is without prejudice and leaves the door open to
approach the courts if no agreement is reached. The process is also confidential.

This means that parties have little to lose in attempting mediation, even if the dispute remains
unresolved.

The potential gains on the other hand are great. If there are no glaring imbalances of power
between the parties and they come to the table in good faith, committed to resolution, the result
may be a mutually-acceptable solution, without the time and energy spent litigating.

In South Africa, alternative dispute resolution, such as mediation, is promoted in a number of
statutes, including the Companies Act and the Restitution of Land Rights Act. Mediation has also
been endorsed by our courts as an effective alternative to litigation.

In addition, the new High Court Rule 41A, which came into effect in March 2020, now requires a
party that initiates a court process to engage the opposing party as to whether the dispute can be
mediated by agreement.

At Van Hulsteyns Attorneys, we see our role in dispute resolution as being broader than as litigators.
In addition to litigators, our dispute resolution team includes accredited commercial mediators.

Please contact Van Hulsteyns to find out more about the benefits of mediation, at
nicola@vhlaw.co.za.