Mediation and property disputes – Property 24

In a number of property disputes, 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 to arise among neighbours, possibly as a result of their living so closely together and having different personalities and concerns or for other reasons.

This is according to Grant Gunston, Senior Director of Gunstons Attorneys, who says in one case, a dispute arose because the original land surveyor made quite serious mistakes on the diagram.  As sectional title levies are calculated on a pro rata basis of the square meterage of the units, the land surveyor’s mistake made some owners pay too much in levies and others pay too little.

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

Gunston says matters went from bad to worse and emotions ran high.  However, he says because at this point the disputants agreed to try mediation, they were able to contain the anger and arrived at a compromise, which, although possibly not 100 percent to all parties’ satisfaction, was acceptable to them, and much better than any of the alternative options.

He says the managing agent can play a helpful role in bringing such matters to mediation, if he is the 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 more) years could have been initiated at great cost to all involved and with no guarantee of a satisfactory outcome for any of the disputants, he says.

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

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

He says this case also 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’ and lead to a ‘lose-lose’ outcome for all.

Gunston has been a leading supporter of mediation and is accredited as both a commercial and family mediator.  He is a founder member of the Association of Independent Mediators (AIM) and is involved in mediation training. Those members of the legal profession and of the general public interested in the possibilities of mediation, he says, may find it of interest to go to the AIM website.

He says the Department of Justice and Constitutional Development is now finalising rules for the use of mediation in court processes, and this will further encourage the use of mediation throughout South Africa. Prosecutors in the criminal courts are also making increasing use of mediation as one of their options in the administration of justice.

“Mediation must become more widely used throughout our country. Its merits are compelling, speedier and more cost effective resolutions – the potential for more creative and satisfactory outcomes, and, from a public point of view, the clearing of the backlog in the law courts which will lead to a more effective administration of justice.” 



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