THE GUNSTONS BLOG

Gunstons Attorneys. On record. Here.


Facing a legal dispute? Why mediation is preferable to litigation

mediationIn a number of property disputes, in our experience, mediation rather than litigation has been shown to be capable of giving quicker, more equitable and less expensive solutions than would probably have been achieved by litigation. This can be especially true in sectional title complexes, which have an inherent potential for disputes between neighbours, due to the number of overlapping interests between neighbours having often very different personalities and concerns.

A case for mediation

In one case we have dealt with, a dispute arose as a result of the original land surveyor making quite serious mistakes on the diagram. As sectional title levies are calculated on (a pro rata calculation of) the square meterage of the units, the land surveyor’s miscalculation resulted in some owners paying too much in the way of levies and others paying too little.

When this was brought to the attention of members, those underpaying  dragged their feet about rectifying matters and this led to acrimony and the formation of two opposing camps among the members.

Matters went from bad to worse, and emotions began to run high. However, because at this point the disputants agreed to try mediation, we were able to contain the anger and to arrive at a compromise, which, although possibly not 100% to all parties satisfaction, was acceptable to them, and a lot better than any of the alternative options available to them. The managing agent can play a helpful role in bringing these matters to mediation, as a voice of reason in the complex.

Had the members not agreed to mediation, and had they gone the litigation route, the conflict would have escalated and a legal process lasting one to three (or even more) years could have been initiated  at great cost to all involved and with no guarantee of a satisfactory outcome for any of them.

A second case for mediation

Another sectional title dispute arose out of allegations that certain members were obtaining advantage for themselves in the running of certain common property. Again there were two broad camps and each had each spent hundreds of thousands of rands on legal costs, but had not arrived at resolution. This stalemate led to the members agreeing to try mediation.

In this particular case,  mediation did not give a final solution, but it certainly did break the log jam and put lawyers in a position to narrow the issues down and move on to a satisfactory settlement.

This case showed yet again that attorneys with mediation experience can be helpful to other members of their profession who have already embarked on litigation but who now begin to fear that it will go on forever or lead to a  lose-lose outcome.

Consider mediation

Mediation must become more widely used throughout our country. Its merits are compelling, including speedier and more cost effective resolution, the potential for more creative and satisfactory outcomes, and from a public point of view, the clearing of the backlog in the law courts leading to a more effective administration of justice.

Grant Gunston

Leave a Reply

Your email address will not be published. Required fields are marked *