To reduce the backlog our judicial system is facing, Rule 41A of the Uniform Rules of Court went into effect on 9 March 2020.
This encourages parties to settle their disputes rather than engage in costly and protracted litigation.
Under this Rule, parties must elect to participate in mediation or to oppose participation in mediation.
Mediating a dispute is a recognised Alternative Dispute Resolution process, which Wiese T [JUTA: 2016, page 47] describes as a voluntary process by which the parties to a dispute enlist a neutral third party for assistance.
Rule 41A prepares the ground for litigants to mediate, prior to going to court.
Mediation practice requires that the parties sign an agreement to mediate before mediation, in which they agree to:
- Appointment of an appropriately qualified mediator.
- The expenses of the mediation, and this includes the costs of the mediator.
- When and where the mediation is to take place.
It is thus important to note that mediation is –
1. A voluntary process; and
2. Uses a neutral third party.
In the sphere of High Court litigation, mediation is facilitative in nature.
This means the mediator will structure the process in such a way that it will try to assist parties in reaching a mutually beneficial settlement.
In accordance with Rule 41A, the party who initiates action against another must serve a notice that she/he either agrees to mediation or opposes it. A summons or notice of motion is usually served with this notice.
After receiving the replying notice, the defending/responding party must indicate if they are willing to participate or not.
Mediating a dispute would require the parties to agree on the terms of the mediation and the mediator’s identity before the process can begin.
An experienced mediator in a particular field with training in assisting disputes in a particular field would be a mediator.
Courts are empowered to order adverse costs against parties who fail to engage seriously in statutory mediation – as was the case in MV v NB 2010(3) SA.
The onus is therefore on the party’s representatives to recognize issues that can be successfully resolved through mediation.
Is mediation appropriate for all types of disputes?
An expert’s testimony and judicial precedent are crucial factors in determining a favourable outcome in personal injury cases, for instance.
In cases like these, can the parties to a dispute really settle their differences through mediation and to what extent?
Certain matters of a dispute may be the subject of mediation, such as the merits and liability related to a claim.
On condition they reach a mutually acceptable consensus between them, the next step, determining quantum, can still be submitted to the courts.
The object of Rule 41A is to be able to resolve disputes between parties in a voluntary, non-prescriptive and non-binding way.
Despite the good intentions of litigants for engaging with Rule 41A, they should be aware of its true purpose and how it functions.
