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Mediation could overcome high litigation ... judges must be independent and objective

2014-07-17  Mathias Haufiku

Mediation could overcome high litigation ... judges must be independent and objective
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By Mathias Haufiku

WINDHOEK - The excessive cost of litigation as well as the long periods courts take to resolve cases, mediation in courts is one of the options that can be used to solve the problem, suggested a counselor to the Chief Justice of the United States of America.

Some of the factors that are known to be pushing up the cost of litigation include hiring expert witnesses; the costs of a study, report, analysis, or other project ordered by the court; attorney hourly fees; court fees; copy fees; deposition fees; computer legal research services; secretarial and paralegal fees; external, consultant, and specialist fees; private investigation fees; costs in obtaining medical, school, and government records and accident reconstruction fees among other factors.

During a briefing yesterday, Jeffrey Minear the counselor to the Chief Justice of the United States, who is in Namibia on a working visit, said mediation will not only eliminate the cost of litigation, but it will go a long way to reduce it.

“Mediation is a quick and cheap way of solving disputes. Mediation is a skill that should not be confined to a section of lawyers only, it should be widely-practised,” said Minear.

With mediation, says Minear, the role of lawyers is reduced greatly because it takes place before the case is filed with the courts.

“Of course it is expensive and that in itself is a problem,” said the Counselor to the Chief Justice.

Minear said mediation and judicial case management are options that could expedite the timeframe in which a pending court case is settled.

“If cases which can be settled quickly are dealt with, it gives the lawyers and judges enough time to deal with the bigger cases,” he said.

Minear noted the USA has strict deadlines, a practise which Namibia might want to consider.

As for the appointment of judges, he said: ""The key for any democratic institution is to have an independent judiciary, but I know this does not come easily.”

The rule of law depends of the independence of judges and they should make independent judgements, which are not based on the subjective views and wishes of the appointing authorities.

“The selection of judges is a critical aspect. Namibia has a Judicial Service Commission, something we do not have in the USA, for me this is a brilliant move,” he said.

To safeguard the judiciary, said Minear, judges are expected to explain why they judged a certain case in a certain way, this is also a way of ensuring that their judgements are fair and independent.

“Judges, however, need to be given them more latitude in matters such as budget control over their departments,” he said.

Namibians have in the past, and still do, lamented the high litigation cost and delays in court cases.

A prominent Namibian lawyer, Richard Metcalfe, in the past was on record as having said, “If you do not have money, you cannot litigate.”

Namibian courts have adopted the mediation programme at courts, although not on a wide scale.

During his working visit, Minear will hold discussions with senior judicial officials on matters such as the independence of the judiciary, financing the judiciary, productive relationships with the legal fraternity and case assignment and management from arbitration to appeals.

Also commenting on the issue of the use of mediators at courts, Norman Tjombe from the Tjombe-Elago Law Firm said mediation is part of the answer to ensure speedy resolution of cases.

“The new regime of mediation of legal disputes in the High Court will certainly make the resolution of these disputes inexpensive. The process of mediation is not only cheap, but also less formalistic and less adversarial than the formal litigation processes. The Namibian Constitution requires the speedy resolution of cases, and mediation is part of the answer,” according to Tjombe.

“A large number of the current court appointed mediators are not lawyers, and time will tell us that perhaps non-lawyers are better in resolving complicated disputes than trained lawyers, who invariably drag clients through complicated and unnecessary legal morass,” he said.

2014-07-17  Mathias Haufiku

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