After my previous letter sent to you, some people were under the impression that an Arbitrator or Mediator would replace the Company’s Attorney. This is not the case at all; the Arbitrators / Mediators work very closely with any Company’s Attorney.

To give you a perspective of what the courts feel about mediation, I would like to quote from the judgment in the case MB v NB (a divorce matter) 2010 (3) 220 SGHC. The Judge said, and I quote (it is a shortened summary):

1. In the opening paragraph I said that the process by which this case had been resolved had been a tragedy. . . . . . from the evidence, it seemed to emerge that the cumulative costs will be at least R 500.000 and may be as much as R 750 000. That a sum of this nature might have been put to better use by the parties – for example, to defray the cost of private schooling for the children – goes without saying.

2. One of the matters that must be considered in the pre-trail conference is whether the dispute should be referred for possible settlement by mediation. . . . . . .

3. . . . . . . Mediation can produce remarkable results in the most unpropitious of circumstances, especially when conducted by one of the several hundred people in this country who have been trained in the process. The success of the process lies in its very nature. Unlike settlement negotiations between legal advisers, in themselves frequently fruitful, the process is conducted by an independent expert who can, under conditions of the strictest confidentiality, isolate underlying interests, use the information to identify common ground and, by drawing on his or her own legal and other knowledge, sensitively encourage an evaluation of the prospects of success in the litigation and an appreciation of the costs and practical consequences of continued litigation, particularly if the case is a loser.

4. In Egan v Motor Services (Bath) (2007) EWCA Civ 1002 the learned judge had the following trenchant remarks to make about the case before him, and they are well worth quoting at length:

“What I have found profoundly unsatisfactory, and made my views clear in the course of argument, is the fact that the parties have between them spent in the region of £100 000 arguing over a claim which is worth about £ 6 000. In the florid language of the argument, I regard them, one or other, if not both, of them, as “completely cuckoo” to have engaged in such expensive litigation with so little at stake. . . . . I raise that matter again in this judgment to make the point as firmly as I can, that this is a paradigm case which, if it could not have been settled by the parties themselves, customer and dealer, then it behooved both solicitors to take the firmest grip on the case from the first moment of instruction. . . . “This case cries out for mediation”, should be the advice given to both the claimant and the defendant. Why? Because it is perfectly obvious what can happen. Feelings are running high, early positions are taken, positions become entrenched, the litigation bandwagon will roll on, experts are inevitably involved, and, before one knows it, there will be two / three day trail and even, heaven help them, an appeal. . . . and what benefit can mediation bring? It brings an air of reality to negotiation. . . . Mediation can do more for the parties than negotiations. In this case the sheer commercial folly could have been amply demonstrated to both parties sitting at the same table, but hearing it come from somebody who is independent. . . . The commercial possibilities are endless for finding an acceptable solution which would enable the parties to emerge, one with some satisfaction, perhaps a replacement vehicle and the other with its and “the Company’s” good name intact and probably enhanced, but perhaps with each of them just a little less wealthy. . . . . .” (Appropriate Dispute Resolutions: A Practical Guide to Negotiation, Mediation and Arbitration” by E Patelia and Dr MA Chicktay, page 85 – 89)

Without quoting various court cases where the Judge refers the case to or advices the parties to go for, mediation I trust that I have been able to introduce a concept in law that can help two disputing parties resolving their differences, derive at an amicable solution and continue doing business in future.

Should you require more information, please go to our website: www.wilbrink.co.za or alternatively give me a call on 031 – 266 9035 or my cell 083 265 3805, or e-mail me at wilbrink@icon.co.za .