The crucial role of alternative dispute resolution in the context of commercial litigation in South Africa considering contemporary circumstances facing the judiciary

by Vikash Sampathmany (Senior Litigation Associate)


Commercial litigation serves as an essential cornerstone of South African jurisprudence in essence it provides a platform for resolution of conflicts in a mercantile world, playing a vital role in upholding legal obligations and fostering trust in business dealings, in pursuit of commercial certainty amongst the contacting public.


The primary purpose of commercial litigation is for parties to pursue legal remedies such as damages, specific performance, or contract termination. The aforegoing is the practical impact, while more philosophically, the Court systems seeks to uphold sanctity of contract and the key principles and values that underpin commercial dealings (which commercial certainty is required in order for commerce to function correctly).


Despite the foregoing parties engaged in commercial disputes cannot do so with rose tinted glasses as litigation is not with associated challenges inherent in the process (more so, wherein an opposing party acts with an intention of delating proceedings, otherwise known as mala fides).


The process involves strict timelines and can incur substantial costs, especially when engaging private attorneys. Therefore, it’s paramount for parties to evaluate the potential benefits against the financial and time implications before electing to pursue litigation.  Considering the complexities and the associated expenses involved, it is prudent to explore alternative dispute resolution (ADR) methods. One such ADR option, court-mandated mediation, stands out as an effective approach to potentially resolving disputes expeditiously.


Court-mandated mediation facilitates a structured negotiation process overseen by a neutral mediator appointed by the parties, offering parties the opportunity to reach mutually acceptable resolutions without the delays and expenses associated with prolonged litigation.


Moreover, opting for mediation may spare parties from the procedural complexities of the South African legal system, which often lead to frustrations and lengthy delays in court proceedings. By embracing mediation, parties may avoid the uncertainty and prolonged waiting periods commonly associated with traditional litigation, notionally promoting a streamlined and cost-effective resolution process.


While the instinct to pursue a legal battle out of principle or emotion may be strong, it’s important to weigh the potential costs and benefits carefully. Litigation should not be undertaken lightly, as it has the ability drain financial resources and prolong the resolution of disputes.


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