Considering mediation as a first stop in the courts



If you have a dispute and consult a lawyer, your lawyer is now required to advise you on the different ways that your dispute may be resolved through the Alternative Dispute Resolution (ADR) processes, which includes mediation. This was made mandatory in January 2016 through an amendment to the Supreme Court Practice Directions (Amendment No 1 of 2016) ("Practice Directions") for civil cases in the High Court and Court of Appeal.

The Practice Directions state that “ADR should be considered at the earliest possible stage in order to facilitate the just, expeditious and economical disposal of civil cases. This is especially where ADR may save costs, achieve a quicker resolution and a surer way of meeting their client’s needs [sic].”

For users of the court process, this means that you should be briefed on all the possible ADR methods to resolve your case. It is like climbing a tower to gain a bird’s-eye view before attempting to navigate through a maze. Instead of blindly rushing in, you can estimate how much money and time each option will cost you, and your chance of getting an outcome that meets your needs. With this information, you can make a better judgment as to what to try first, and what to do as your next steps.

Mediation is a conflict resolution process where a neutral third party helps disputing parties to identify their interests and priorities, and to work out a mutually beneficial settlement. It saves substantial time and costs, and parties have control over the outcome of the dispute, thereby avoiding the risk of losing in court. The process is also confidential.

While mediation can generally be used for any kind of dispute that is not criminal in nature, an appendix to the Practice Directions provides some examples of disputes that are ideal for resolution by mediation. They include:

  • Commercial disputes where ongoing relationships need to be preserved;
  • Small value construction disputes;
  • Disputes between neighbours including boundary disputes and rights of way;
  • Professional partnership disputes;
  • Actions by liquidators where the available assets are limited and the costs of litigation may be high;
  • Clinical and medical negligence;
  • Employment cases; and
  • Any other claims where the costs of litigation outweighs the value of the claim.

Lawyers should also advise you on the existing rule of “potential adverse costs orders for any unreasonable refusal to engage in ADR”. This means that parties who refuse to attempt ADR, when an ADR offer is made, may have to pay more for the cost of litigation, regardless of the final outcome of the case.

The amendments to the Practice Directions will put you in the driver’s seat and ensure that you are well informed and are able to choose a dispute resolution process that will serve your best interests.

For more information, the Practice Directions can be viewed here.

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