Can’t afford to Litigate- The cost of Justice

Nobody budgets for litigation. When issues arise, the reality is that most of us can’t afford to litigate. Those fortunate enough to be able to afford it, consider it a grudge spend. Cost is often the greatest barrier to litigation. Who wants to spend his or her hard earned cash on something as negative as litigation. However as long as human nature is what it is and people clash with each other, it is important to have some mechanism to resolve issues and conflict. So what are the options available to you when you find yourself in a conflict situation?

Firstly consider very carefully the cost, both financially and emotionally, of your response. To litigate only to defend a principle can come at enormous cost. Consider walking away.

If avoiding the conflict is not possible, consider alternative dispute resolution. This will include dispute resolution processes and techniques that act as a means for disagreeing parties to come to an agreement instead of litigation. These represent other way that parties can settle disputes, with (or without) the help of a third party. ADR is the most effective method of resolving disputes outside the judicial process (in other words formal litigation in court). ADR is more efficient and effective than the courts in providing justice.
Despite historic resistance to ADR by many popular parties and their advocates, ADR has gained widespread acceptance among both the general public and the legal profession in recent years. In fact the new Children’s Act 38 of 2005 in general underpins the importance of a conciliatory and non-confrontational approach to the settlement of child-centered disputes. It very specifically refers to mediation as an appropriate means of dispute resolution. In some instances the Act expressly mandates mediation and in others the Act grants the court the discretion to order mediation. There are also several provisions in the Children’s Act which do not specifically mention mediation, but where mediation is definitely implied.

The rising popularity of ADR can be explained by the increasing caseload of traditional courts, the perception that ADR imposes fewer costs than litigation, a preference for confidentiality, and the desire of some parties to have greater control over the selection of the individual or individuals who will decide their dispute

Should ADR be unsuccessful, before approaching lawyers, who are generally very expensive, one should explore other legal resources, state run or otherwise These organisations could help by  through formal court-based litigation or even by using ADR to resolve issues. For an organisation that could assist you to decide on the best and most cost effective way to solve such a problem I refer you to THE FAMILY LAW CLINIC on www.familylawclinic.org.za

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