Author: Gabriella Keeble
SCHOEMAN LAW INC
23 June 2021
To mediate or to litigate? That is the question!
Litigation is often the first route that parties take when a dispute arises. It is often pursued when it is evident that the other party does not wish to co-operate and litigation thus ensures that the matter is adjudicated. The decision of the court binds the parties. But there are many downfalls to litigation, especially when the parties have familial ties or run in the same crowds. It may even extend to the employer-employee relationship where a dispute arises, but the employee does not wish to exit the company. So what alternatives to litigation are there when a dispute arises?
Mediation, as a form of Alternative Dispute Resolution (hereafter “ADR”), is a process that involves a neutral third party to assist the litigating parties in resolving their dispute through identifying and isolating the relevant issues, suggesting possible concessions and producing options.
Mediation ultimately attempts to reach an amicable and mutually acceptable solution, as opposed to litigation, which is adversarial and often has the potential of destroying relationships. Mediation is most useful when dealing with family law matters such as divorce or maintenance claims, as well as labour law matters when a dispute arises between the employer and employee. Mediation is also a much faster and cost-effective approach than entering into long, drawn-out and extensive litigation proceedings.
When a labour dispute arises, conciliation is the first approach that is used by the Commission for Conciliation, Mediation and Arbitration (CCMA) as a facilitated negotiation process to foster the working relationship between the employer-employee. This approach is also widely applied when dealing with a conflict in a family setting. The mediation process is confidential and is used when there is a need to preserve the relationship between the parties. But often, where the relationship is too far gone and cannot be salvaged, the mediation process is futile. Additionally, when the nature of the dispute is criminal, or the relationship is not a critical component of the conflict, litigation may be a better option than mediation.
The nature of the dispute will no doubt determine whether parties may opt to mediate or to litigate and parties maintain their right to opt for litigation should mediation attempts prove futile.
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