mediation in civil matters in South Africa
The Rules Board for the courts of Law have amended the rules regulating the conduct of proceedings of the Magistrates Courts of South Africa with a view of introducing alternative dispute resolution mechanisms by way of court-annexed mediation or a CCMA kind of alternative dispute resolution, into the court system.
In essence what the Rules board has done is introduce a process of Mediation into all matters of litigation with a view of promoting access to justice, promoting restorative justice, as well as preserving relationships between litigants or potential litigants which may become strained or destroyed by the adverse nature of litigation. Amongst all of this the concept of mediation is aimed at facilitating an expeditious and cost-effective resolution of a dispute between litigants or potential litigants, as well as assisting litigants or potential litigants to determine at an early stage of litigation or prior to commencement of litigation, whether proceeding with a trial or an opposed application would in fact be in their best interests or not. Litigants or potential litigants are, through the process of mediation, also provided with solutions to their dispute which may be beyond the scope and powers of judicial officers. ie. the informal solution and settlement of disputes.
In essence from the 1st of August 2014 parties will have the option of referring a civil dispute to mediation through agreement or on application. This will include referring an action, a claim instituted by way of a summons, and/or referring an application, a claim instituted by way of a notice of motion, to mediation. What is interesting with the court-annexed mediation approach to resolving matters is that disputes can be submitted to mediation prior to and/or after the commencement of litigation, provided that a judgment or order has not yet been made in the matter. If a matter has however already proceeded to trial the parties must obtain the authorisation of the court to refer the matter to mediation.
If parties decide that they wish to refer a dispute to mediation, they will conclude a written agreement to this effect. Once an agreement is signed and filed at court, the parties will be given the opportunity to lodge statements of claim and statements of response prior to the mediation sessions commencing. A mediator is then appointed to assist the parties in an attempt to resolve the dispute by facilitating discussion between the parties. The mediator will also aim at identifying and clarifying the issues in the dispute as well as exploring areas of compromise and generating options which may aid in resolving the dispute.
At mediation the parties must be informed of the following: the objectives and purpose of mediation;
the role of the mediator;
the informal and inquisitorial nature of mediation;
the rules applicable to mediation sessions;
that all discussions and disclosures of whatsoever nature made during mediation are confidential and inadmissible as evidence in any court or tribunal unless they are recorded in a settlement agreement or otherwise discoverable in terms of law;
that if the dispute is resolved, a settlement agreement incorporating the terms of the settlement l be drafted and filed at court to close the matter;
that if the dispute is not resolved, the dispute will be referred back to the clerk or registrar of the court with advice that the dispute could not be resolved.
The parties participating in the mediation are liable for the fees of the mediator and mediation in equal portions, save for instances where the services are provided free of charge. A party may however undertake to pay the fees of the mediator and mediation process alone.
Although a party may be legally represented at mediation, both parties, the Applicant and Respondent in the mediation, must attend the sessions in person. In the case of a juristic person or a firm or partnership, a duly authorised representative must attend the mediation proceedings and enter into discussions on the juristic persons behalf.
The concept of court-annexed mediation is an interesting development in our law and courts and given the correct framework and personnel behind the execution of the system could necessitate the phasing out of bad claims which should not find their way into court. In addition the mediation process could well encourage parties to settle a dispute without the rigid and mechanical means of litigation. On the other hand parties to a dispute may well utilise the mediation process as a tactic to delay a matter going forward without any intention of finding resolution to the matter. Let’s hope that it is a successful development in our South African Law. Only time will tell.
Warren Sundstrom
