By Nicolene Schoeman – Louw
Often when clients find themselves in a dispute, we are asked as attorneys to comment on the prospects of success, which is sometimes a challenging question to answer effectively. In South Africa, we follow an approach that all matters are based on a balance of probabilities (concerning civil cases). In simple terms, this means that the version the judge or magistrate is most persuaded to be most probable will succeed. But, of course, the legal requirements also play a role and should not be overlooked.
In addition, as legal practitioners, we need to collect the facts and evidence as early as possible and as accurately as possible. Then to compare this to the version the opposing side is putting forward. Essentially, this exercise is founded on the analysis of the facts and the evidence (the client’s version, the emails, instant messages and any documents such as contracts). So, more often than not, cases are won or lost based on the evidence supporting your version.
The law can be daunting and often complex. However, the evidence and the story around what happened is the primary consideration when we attempt to predict outcomes as much as the legal provisions may be.
I would also like to mention that often challenges arise in this process when the available evidence does not entirely support the version of our clients. This typically happens when there is no contract. Or when there is but a lot of correspondence between the parties. For that reason, legal practitioners always advise their clients to enter into solid agreements that reflect the intentions of both parties. In addition, we always recommend keeping a good paper trial.
Even with a good contract in place, it is essential to remember that correspondence has the power to alter the position in certain circumstances. To avoid this, ensuring that the agreement is professionally crafted is critical.
So, what happens when you have not entered into a professionally crafted agreement and find yourself in a dispute situation? Well, it is critical that you invest in the time with a professional and sift through all the evidence to plan the best way forward. Disputes based on inadequate legal documentation or confusing exchanges – can be resolved in a less acrimonious manner. This is where round table discussions and mediations play a significant role.
In these instances, it is less about who’s version is more probable and more about the parties’ interests. In this process, the aim is to seek a compromise which will resolve the matter hopefully with the relationship intact. However, often the opportunity is missed because too much water has flowed under the bridge. A negotiation around a table, as well as a mediation, requires the agreement of both parties and active participation in seeking resolution. Conversely, in a litigious environment, the relationship is often the primary victim and usually does not survive the process.
It is therefore essential not only to enter into well-thought-through and clear agreements that avoid disputes or at least regulate the environment better in the event thereof. It is crucial that when you are staring down the barrel of a disagreement, you carefully consider all the implications. After that, construct the best approach with the assistance of a skilled negotiator (attorney). Who understands the evidence and what is at stake to resolve the dispute as quickly and effectively as possible.
Contact SchoemanLaw for all your negotiations, navigating the minefield of a dispute and litigious needs!
