Dispute Resolution Lawyers
When you are facing a legal dispute, our Dispute Resolution Lawyers can assist in various ways, and not only by launching a court case, to help settle, resolve, or end the dispute. These strategies are collectively referred to as “alternative dispute resolution” legal services.
There are a number of alternative dispute resolution procedures that can be used as an alternative to costly and drawn-out litigation. The most common of these are arbitration and mediation. These services are offered by our Dispute Resolution Lawyers.
Business owners, managers and legal advisors are encouraged to provide for cost-effective dispute resolution and prevention techniques in all your commercial and public-sector dealings. In the first instance, provision should be made in all your agreements that should any dispute, disagreement, or claim arise between the parties concerning that agreement, the parties must try to resolve the dispute by negotiation. This entails that the one party invites the other in writing to meet and to attempt to resolve the dispute within a fixed amount of working days from the date of the written invitation.
If the parties are unable to resolve the dispute on this basis, or by direct negotiations, then any such dispute, difference, or question will be submitted to and determined by arbitration or mediation. Many of these dispute resolution methods are offered remotely and sessions can be conducted online and via videoconferencing (such as Zoon, MS Teams or Skype).
Arbitration is a procedure whereby the parties jointly appoint an impartial third party to resolve the dispute between them in accordance with their legal rights. Parties could agree to appoint an experienced independent lawyer as an Arbiter to help resolve a dispute. Arbitration is the formal process of resolving disputes outside of court. An Arbiter is appointed as an adjudicator and the procedures are governed by an agreement between the conflicting parties and the Arbitration Act 42 of 1965. Parties agree to abide by the decision of the Arbiter. Unlike in a court matter, proceedings and settlement agreements could be kept confidential.
The most important feature of arbitration is its consensual basis, which makes it a particularly flexible procedure. The parties can adapt the procedure, taking into consideration the nature of the dispute, as well as the amount at stake.
Commercial contracts often make provision for arbitration as a method of alternative dispute resolution. In this regard, commercial contracts often appoints an arbiter who is an accredited member of the Arbitration Foundation of Southern Africa. International disputes can be facilitated by members of the SA Court of International Arbitration and the International Chamber of Commerce.
Mediation is a voluntary procedure whereby the parties jointly appoint an impartial third party to assist them to arrive at an agreed resolution of the dispute, particularly in situations where the parties wish to maintain an ongoing relationship. Such circumstances often relate to divorce matters, the upbringing of children and/or other family law issues.
If both conflicting parties are committed to settle a dispute informally and want to do so directly and on a speedy cost-effective basis, the parties could conclude an agreement that the same lawyer may represent and advise them both in capacity as Mediator. Mediation is an intervention by a neutral Mediator who acts as a facilitator to promote reconciliation or a settlement between conflicting parties. Mediation is generally an informal process which gives opportunities for all conflicting parties to be heard. Mediation could be helpful in instances of conflict relating to legal issues or any other issue between conflicting parties. Settlements could be kept confidential. Mediation relating to a legal dispute is best offered by experienced lawyers who are also qualified Mediators.
Court proceedings are usually the last option to be pursued by individuals, start-up businesses or SME businesses to resolve legal disputes, as court proceedings are generally costly and time consuming. Having said that, some legal disputes are required by Law to be ended only in court, for instance, obtaining a divorce order. Also, sometimes threatening and actually launching court proceedings may be the best and only strategic way to force a settlement or bring a dispute to a just and fair end.
Before launching court litigation, consider (a) whether your options for informal settlement have been exhausted, (b) what your chances are to succeed, and (c) whether it will make commercial sense in the end.
Court litigation can be very unpredictable and experienced litigants can use legitimate strategies to delay the matter or run up costs. Large companies often budget for annual litigation to protect their assets and can use litigation as a business strategy to delay or minimize competition.
Decide beforehand, (a) what will be your “win”, (b) what you are willing to spend, and (c) how long you can wait to get the matter finalised. Also bear in mind that the courts are public forums and the papers filed can become a matter of public record.
Apart from representing yourself, you can only be represented by an Attorney and/or an Advocate in court proceedings. Attorneys are mainly responsible for taking instructions from clients; preliminary advising on the merits; options and procedures; correspondence with all parties; necessary administrative tasks relating to preparing and filing of court papers; and serving as address for service of court papers. Most Attorneys are also qualified to appear in courts and handle hearings.
Advocates are usually litigation specialists which mean that their primary legal services generally include, giving opinions, settling court papers, drafting Heads of Arguments, appearing in courts and handling hearings. It should be noted that most Advocates (“Referral Advocates”) are not allowed to take instructions directly from the public and must be briefed by Attorneys. Only “Trust Account Advocates” may take instructions directly from the public.
For more information regarding our dispute resolution lawyers, or this legal practice area, get in touch with our top lawyers!