Do Civil Cases Always Go To Court?
Civil cases do not have to be resolved in court. It may happen in legal proceedings that parties decide to settle a claim before it gets to trial before a judge.
Cases can be settled outside of court by way of agreement or handled by way of alternative dispute resolution (ADR) such as through the process of mediation.
If the case goes to court, the issues will be decided by a judge. This is usually the case where parties are unable to reach an agreement on the issues and wish for a judge to make a decision.
If the case is settled outside of court, both parties have slightly more control over how the issues are decided. There may also be significant savings in terms of costs as well as the time in which the case is finalised.
It is however important to keep in mind that even before settling a case should still be properly considered to ensure that it is not under settled. In South African law there is a rule that you may claim only once for damages based on a specific incident. Therefore if you settle a claim, you will accept that you cannot sue that person again later if you realise you received too little compensation. This is why it is wise to make use of an attorney specialising in the appropriate field of law and who has experience in your type of claim.
Parties can settle a claim by agreeing on settlement terms, such as an amount of money, services to be provided, how legal costs are to be settled etc. A settlement agreement may often include a letter in which the injured party undertakes not to disclose the terms of the settlement and the agreement must then be kept confidential. This non-disclosure agreement is common practice where hospitals or well-known practitioners are involved to avoid any controversy in the media.
The Road Accident Fund has in the past often settled smaller claims, however in recent years cases often go to court as the Road Accident Fund’s offices are too overwhelmed to attend to all cases.
Alternative dispute resolution (ADR) such as mediation or arbitration are alternatives to the court process by which the parties attempt resolving a matter before going to trial. Often in matters relating to corporate or business disputes, the process is referred to as Arbitration. The process of mediation still requires parties to set out and prove their case and involves an impartial person to act as an intermediary between the parties. Advocates and attorneys are still involved in the process to assist parties and often a senior or qualified legal practitioner can act as the mediator to facilitate or make decisions. Mediation involves a facilitated negotiation, whereas arbitration involves a third party decision-maker. If mediation fails the parties can still approach a court to decide through the usual process of litigation.
From 9 March 2020, in all-new High Court matters, parties are required to consider mediation. If mediation is not an option, the reasons, therefore, have to be set out clearly and persuasively. Failing to consider mediation or explain why it is not a viable option may lead to additional costs and time delays in finalising cases. This being said, mediation will not necessarily lead to earlier settlements in all cases and parties should keep in mind that it may ultimately be necessary to go to court at the end of the day.
Click here for more information on the “Principles of mediation”
Click here for more information on “Court-annexed mediation”.