- September 4, 2022
- |Law Everyday
THE EFFECT OF AN ADVERSARIAL SYSTEM ON ALTERNATIVE DISPUTE RESOLUTION
In a recent judgment of Kahuure v Kahuure (1 November 2022), the High Court stated in respect of a late amendment to pleadings that, ‘litigants must be allowed in the adversarial system, to ventilate what they believe are the real issues between them’. In an earlier case of Salt Essential Info Tech (Pty) Ltd v RDW Properties CC (6 October 2022), the High Court bemoaned the lack of serious engagement by the parties to resolve their issues in terms of rule 32(9) and (10) of the Rules of Court. Rule 32(9) requires a party seeking to bring an interlocutory proceeding to first seek an amicable resolution with the other party or parties. With respect to legal representatives, the court said:
“If the instructing counsel on both sides of the suit had displayed a modicum of respect for each other – as legal practitioners – and have been amicable in their dealings towards each other in the implementation of rule 32(9) and (10), all this kawfwafwa, and hullabaloo in the proceeding would probably have not occurred. But it has occurred much to the incurring of great legal costs.”
In this case, the court concluded that no reasonable receiver of the letters from the party who sought to bring an interlocutory application could have been expected to act on them as being precursors to a genuine and efficacious rule 32(9) meeting and the Court found that there was simply no compliance with the peremptory provisions of rule 32(9) and (10).
My reading of the cases above had me think about our adversarial legal system vis-à-vis Alternative Dispute Resolution (ADR) which was introduced into the court process by the High Court Amendment Act, 12 of 2013 read with the 2014 ‘new’ Rules of the Court, and Practice Directions. These rules also introduced Judicial Case Management (JCM) whose overriding objective is the speedy, efficient, and cost-effective resolution of matters. Erasmus, Judicial case management and the adversarial mindset – the new Namibian rules of court (2015) observed that the introduction of JCM in other jurisdictions gave rise to a “new culture” and a “new ethos”. The objective is to be achieved by, among other things, the promotion of public interest in limiting issues in disputes through the early settlement of disputes by agreement between the parties in dispute, which is brought to life by court-connected mediation provided for in rules 38 and 39. In terms of rule 38(1), the managing judge may at any time either of his or her own initiatives or at the request of a party refer ‘a case or any part of the proceeding or any issue’ to ADR. According to Damaseb, Court-Connected Mediation in the High Court of Namibia (2014), these reforms made a paradigm shift from the orthodox adversarial system of justice, and alternatives to adversarial justice are necessary for a county where people have a Constitutional right of access to court but cannot afford the services of lawyers to ventilate their constitutional rights. The rationale for ADR was aptly put by Damaseb (2014) thus:
“In most systems that operate an adversarial civil justice process, the majority of civil cases are settled at the door of the court. That being the case, it is only sensible to explore early settlement of legal disputes and save costs. Litigation is a zero-sum game: there is always a winner and a loser! Even the party that wins does not always do so on its terms. As the adage goes, a negotiated settlement is better than an unfavourable judgment. There is therefore a public policy rationale and a legitimate governmental objective in encouraging litigants to seek to resolve their disputes out of court.”
To put things in context, in the adversarial system, the whole litigation process is a contest between two parties from the word go. It is a system in which clients are represented with great zeal and combativeness and the client has a ‘don’t talk to me, talk to my lawyer’ mentality (have you seen Boston Legal or Suits? – that is adversarial). ADR on the other hand is the process of resolving disputes in less antagonistic ways, such as negotiation, mediation, conciliation, and arbitration. According to Erasmus (2015) JCM and its accompanying feature of court-connected mediation “seek to establish a culture that makes the early settlement of disputes the primary aim of civil litigation; which imposes responsibility upon judges for the way in which the case proceeds through the system to final judgment; which obliges litigants and their lawyers to pursue and defend their proceedings with efficiency and despatch, and demands from lawyers co-operation, candidness, and respect for truth.”
Now, the adversarial system or ‘mindset’ would operate against the principles of ADR, as it is clear from the introductory cases that the adversarial system and mindset are well and alive, in the face of the new rules. This is a mindset that once a case is lodged, it is you against the other party, and the end goal is to win, while the ADR principles on the other hand advocate for early attempts and continued efforts to settle matters, for truth’s sake. To fully accommodate ADR, this mindset of both client and legal representative must change. The system must also change and bring out a “new culture” and a “new ethos”. Parties and their legal representatives must engage in serious negotiations with serious intention to resolve their matters alternatively.
I submit that the process starts with appropriate legal advice from the onset, followed by serious and intentional engagement with the other party, and capped with full commitment to settlement outcomes – there have been cases where parties, after mediation was successful, disputed the settlement agreement (AN v PN (27 September 2017)). It was held that the overriding objectives of JCM dictate that the court holds parties settling their disputes freely and voluntarily at mediation to their agreements so as not to denude the institution of mediation of its efficacy and usefulness to speedy dispute resolution. The opposite adversarial process is not only dilatory but counterproductive.
Fedden Mainga Mukwata – Legal Pundit