SOUTH AFRICAN COURTS CHOOSE MEDIATION OVER LITIGATION
1. The Constitution of the Republic of South Africa
Section 34 of the Constitution of the Republic of South Africa, 1996 guarantees everyone the right to have any dispute that can be resolved by the application of the law decided in a fair public hearing before a court or, where appropriate another, independent and impartial tribunal or forum.
2. Definition of Mediation
Mediation is a process by which a mediator assists the parties in actual or potential litigation to resolve the dispute between them by facilitating discussions between the parties, assisting them in identifying issues, clarifying priorities, exploring areas of compromise and generating options in an attempt to solve the dispute.
3. The “Mediation Pilot Project”
The “mediation pilot project” follows a trend well established in the UK, Australia and part of the US.
The new directive is expected to come into effect in any civil matter headed for selected South African Courts. This mandatory mediation stipulation is expected to be extended to all Courts in South Africa. Parties who refuse to participate face the possibility of cost orders being granted against them.
The SA Rules Board for Courts of Law has been working on the proposal to formally gazette this process; meaning that in going forward, attempts to resolve litigious cases via mediation will in the future no longer be voluntary as it is right now.
Over time the Legislature seems to have followed a fairly conscious strategic plan of legislation in South Africa that either makes mediation compulsory as a dispute resolution mechanism or highly recommended.
Mediation is not just about saving legal costs for parties but the new ruling would also help to address an already exhausted court roll as it diverts matters away. As things stand, from the moment a matter is opposed and an appearance to defend is entered, it can take a while to get the matter into Court for adjudication. That is just one of the reasons why mediation makes sense. Mediation will therefor result to the finalization of matters on a less timeous basis than your normal litigation process.
This new proposed rule is going to be run in High Courts as well as in the lower divisions of Courts. Parties will thus be required to go for mediation in any opposed matter
4. The purpose of Mediation
The main purpose of mediation is to:
(a) promote access to justice;
(b) promote restorative justice;
(c) preserve relationships between litigants or potential litigants which may become strained or destroyed by the adversarial nature of litigation;
(d) facilitate an expeditious and cost-effective resolution of a dispute between litigants or potential litigants;
(e) assist litigants or potential litigants to determine at an early stage of the litigation or prior to commencement of litigation whether proceeding with a trial or an opposed application is in their best interests or not;
(f) allow litigants or potential litigants to return to litigation should the attempt at mediation not be successful;
(g) dispense with litigation procedure and rules of evidence; and
(h) provide litigants or potential litigants with solutions to the dispute, which are beyond the scope and powers of judicial officers;
5. Referral to mediation
A dispute may be referred to mediation-
(a) by any party prior to the commencement of potential litigation;
(b) by any party after commencement of litigation but prior to judgment: Provided
that where the trial has commenced the parties must obtain the authorisation of the court;
(c) by a judicial officer at any time after the commencement of litigation if the judicial officer believes that there is good reason for doing so.
1. Wanda Hennig. 2012. South Africa opts for mediation over litigation. [ONLINE] Available at: http://www.wandahennig.com. [Accessed 02 September 15].
2. Juta Law. 2013. Court Annexed Mediation Rules. [ONLINE] Available at: https://jutalaw.co.za/media/filestore/2013/05/Draft_Voluntary_Court-Annexed_Mediation_Rules_of_the_Magistrates_Courts.pdf. [Accessed 02 September 15].
By: Kristle Peterson LL.B