Dear

On 25 August 2009 in the case of Brownlee v Brownlee heard in the South Gauteng High Court in Johannesburg, Acting Judge Brassey handed down a very important judgment on the duty of parties to a dispute to attempt to mediate the dispute and on the obligation of opposing attorneys to encourage mediation, before litigation commences. The judgment extols the virtues of mediation and capped the fees of the attorneys for both parties because they had failed to advise their clients to go to mediation at an early stage. Normally the unsuccessful litigant pays the costs of the successful one. The judge expressed his disapproval of the parties’ conduct by making the parties bear their own costs. This case is likely to make it risky for attorneys not to advise their clients about mediation and for clients to unreasonably refuse to attempt mediation.

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This is a summary of what the judge had to say:

·         The process by which this case had been resolved had been a tragedy because of the legal costs that the parties will have to bear unless something is done to mitigate them. From the evidence it seemed to emerge that the cumulative costs will be at least R500 000 and may be as much as R750 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.

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

·         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.

·         In the English decision of Egan v Motor Services the judge made scathing remarks about the fact that the parties spent substantially more in legal costs that the amount in dispute and said, in summary:

o    It behoved both solicitors to take the firmest grip on the case from the first moment of instruction.

o    “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 trial and even, heaven help them, an appeal.

o    And what benefit can mediation bring? It brings an air of reality to negotiations that, I accept, may well have taken place in this case. Mediation can do more for the parties than negotiation. 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.

o    The cost of such a mediation would be paltry by comparison with the costs that would mount from the moment of the issue of the claim. In so many cases, and this is just another example of one, the best time to mediate is before the litigation begins. It is not a sign of weakness to suggest it. It is the hallmark of commonsense. Mediation is a perfectly proper adjunct to litigation. The skills are now well developed. The results are astonishingly good. Try it more often.

·         If mediation is appropriate in commercial cases, how much more apposite is it in family disputes. They engage the gamut of emotions, from greed through pain to vengefulness; they generally involve the rights of children, majors as well as minors, who can only experience fear and bewilderment at the breakdown of the structures of love and support on which they, as family members, have come to depend; and the division of the estates of the parties, intertwined as they invariably are, can be very complex and are frequently made the more so by the parties’ bloody-mindedness and duplicity. Throughout the process, moreover, the legal costs come out of the common pot and, since they deplete the assets that can be used for the advancement of members of the family, must be the subject of continual concern and anxiety.

·         The Court expects attorneys acting on behalf of such people, as professional people and officers of the court, to display objectivity and sound common sense in assisting their clients. Fortunately most attorneys perform this task admirably. However there is a minority of attorneys who approach each divorce as a war between the two litigants. The rules of court and legal principles are utilised as weapons in a fight to destroy the opposition. As happens in most wars of attrition by the time the war has come to an end both sides have lost. There is now permanent hatred between the parties and their joint assets have been consumed to pay legal fees. Acrimony between legal representatives, which can carry over from one case to the next, easily produces an over-identification with the client’s cause and an attitude of win-at-all-costs. These emotions can act as a complete barrier to settlement.

·         Lawyers create the illusion that clients are solely responsible for the stances that are adopted in litigation, but of course their advice is profoundly influential and shapes the demands being made and strategies used to achieve them.

·         In the process of mediation, the parties would have had ample scope for an informed but informal debate on the levels of their estates, the amount of their incomes and the extent of their living costs. Nudged by a facilitative intermediary, I have little doubt that they would have been able to solve most of the monetary disputes that stood between them. The saving in time and legal costs would have been significant and, once a few breakthroughs had been made, I have every reason to believe that an overall solution would have been reached. Everyone would, in the process, have been spared the burden of two wasted days trying to settle in judge’s chambers and four further days in which the minutiae of assets and liabilities and income and expenses were interrogated.

·         In short, mediation was the better alternative and it should have been tried. On the facts before me it is impossible to know whether the parties knew about the benefits of mediation, but I can see no reason why they would have turned their backs on the process, especially if they had been counselled on the matter by the attorneys. What is clear, however, is that the attorneys did not provide this counsel; in fact, in the course of the pre-trial conference they positively rejected the use of the process. For this they are to blame and they must, I believe, shoulder the responsibility that comes from failing properly to serve the interests of their clients.

·         I am persuaded that the failure of the attorneys to send this matter to mediation at an early stage should be visited by the court’s displeasure. On this basis, I propose to limit the fees they can recover from their clients to the costs they can tax on a party and party scale.

Roy Bregman     Bregmans Attorneys Office 314 3rd Floor Office Towers Killarney Mall 60 Riviera Road Killarney Johannesburg roy@bregmans.co.za  http://www.roylaw.co.za tel: fax: mobile: (011) 646-0335 (086) 680-9142 (082) 881-2360 Skype ID: stanroy