Dispute Resolution: Mediation as a Dispute Resolution Mechanism

The much-awaited High Court Rule 41A regarding mediation as a dispute resolution mechanism came into operation on 09 March 2020. The rule came against a backdrop of costly litigation, a court system overburdened with a high volume of matters to adjudicate upon, and a pandemic. The Covid-19 pandemic and the economic meltdown it has brought means that litigation is now a luxury very few individuals and entities can afford.

Mediation is a voluntary process entered into by agreement between the parties to a dispute, in which an impartial and independent person, the mediator, assists the parties to either resolve the dispute between them, or identify issues upon which agreement can be reached, or explore areas of compromise, or generate options to resolve the dispute, or clarify priorities, by facilitating discussions between the parties and assisting them in their negotiations to resolve the dispute. The mediation process is aimed at reducing the heavy workload on our courts. It has given litigants or potential litigants an alternative manner to resolve disputes.

In terms of the abovementioned Rule, parties instituting or opposing any action or application are required to serve upon each other, along with their papers, a notice indicating whether they agree or oppose referral of the dispute to mediation. The notice must be in accordance with Form 27 of the First Schedule and clearly indicate reasons why the dispute is or is not capable of being mediated.

Parties at any stage of litigation before judgment may refer a matter to mediation. They must deliver a joint minute and enter into an agreement to mediate. Time limits for delivery of any court processes are then suspended for 30 days from the date of signature of minutes to the conclusion of the mediation process for all parties to the dispute.

In proceedings with multiple parties where all or some of the parties agree to the process, time limits are suspended even for those who refuse to mediate until the process is concluded. If there are multiple issues, some or all issues may be referred to the process and remaining or unresolved issues may proceed to litigation.

Except provided by law, or is discoverable, or by agreement between parties, all oral and written communications made at the mediation process are confidential and thus inadmissible.

The process is deemed complete after 30 days have lapsed from the signing of the joint minute and suspension of time limits lapses. The court may on good cause shown by the parties, extend the mediation session.

Upon conclusion of the process, the parties and the mediator shall by notice inform the Registrar and all other parties, and within five days of conclusion, issue a joint minute indicating issues resolved and whether full or partial settlement was achieved. Offers made without prejudice shall not be disclosed to the court before judgment has been given. Where settlement has been achieved, Rule 41 shall apply mutatis mutandis.

Costs of mediation shall be borne by parties in participation equally unless they agree otherwise.

Attempts to mediate a dispute at an early stage to save costs are advisable. This is especially true with family law matters. A mediator can assist with attempting to find a compromise to an issue that is suitable for all parties involved or finding common ground and narrowing down issues in contention, thus saving legal costs.

The Covid-19 pandemic, its economic effect, and vulnerable financial position it has put individuals and entities in, has created global turmoil not seen and experienced since the Great Depression of 1929. In light of the aforementioned, mediation offers parties to a dispute a more cost-effective way to resolve issues. High Court Rule 41A is in line with legal developments worldwide, it is wise for legal practitioners to adapt and embrace these developments in order to remain viable into the future.

For more information on mediation, please contact an attorney at De Klerk & Van Gend at the contact details of our website and our professional staff will assist you. (info@dkvg.co.za)

Written by Msizi Mhlongo

This article is for general information purposes and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact us At DKVG Attorneys for specific and detailed advice.