With the courts only open for the hearing of urgent applications or matters relating to violations of liberty, domestic violence, maintenance and matters involving children during the Covid-19 lockdown period, now more than ever finding alternative methods of resolving disputes and managing your legal affairs is paramount and may just save you time, money and rescue professional and personal relationships, and your business/livelihood.
PJ Veldhuizen, MD at Gillan & Veldhuizen, says, “In these unusual circumstances, it’s important for the public to know their options regarding the resolution of legal matters – that most can be done remotely and in some instances at a fixed fee.” He adds that with regard to disputes in particular, there are alternative dispute resolution mechanisms that are often the better choice over a prolonged court case – even when not in lockdown.
This involves an independent, qualified third party listening to each side’s version of events, examining the dispute, and assisting the parties in finding a solution. Mediation allows for a creative resolution in ways that a court cannot. “Also, mediation is ‘without prejudice’,” explains Veldhuizen; “what a party says in a mediation cannot later be used in court proceedings.”
As a cost saving, parties do not need to hire legal practitioners and can share the cost of the mediator – there is also the option of Fixed Fee Mediation which will give both parties a fair indication of the costs involved.
Unlike mediation, arbitration results in a ‘decision’ which can be made an ‘order of court’ by agreement between the parties. Here, parties are usually represented by legal practitioners because arbitration proceedings are closer to an actual court hearing than mediation. Often the arbitrator will be a retired judge or senior legal practitioner, and so it is recommended that each party have an experienced legal practitioner present for the arbitrator to make a ‘decision’.
Arbitration is still an adversarial process as the arbitrator will find in favour of one party, with a cost order to follow, so parties should agree from the outset how costs will be dealt with or whether this will be left in the discretion of the arbitrator. Veldhuizen adds that time is a major advantage of arbitration. “Parties are not restricted by the court’s timelines and thus an arbitrator can resolve a matter in weeks or months rather than years,” he explains.
This is an accelerated and cost-effective tool as the outcome, a decision by an adjudicator, is binding on the parties unless reviewed by either arbitration or litigation.
An adjudicator reviews evidence from both sides to reach a decision which determines each party’s rights and obligations, provides certainty as to each party’s position, and permits the parties to get on with business.
“The difference here,” states Veldhuizen, “is that in adjudication, the parties do not necessarily need to be present, as an adjudicator may request written submissions and clarifications from both sides before reaching a decision.” This, he says, keeps costs down and prevents issues from multiplying into procedural arguments and delays.
Veldhuizen advises that alternative dispute resolution in the mainstream, and even more so during lockdown, poses a cost-effective solution to complex matters, and is a wise course of action to consider during this time of crisis.