The Rules Board for Courts of Law has amended the rules regulating the conduct of proceedings of the Magistrate Court of South Africa, in order to introduce alternative dispute resolution mechanisms by way of court-annexed mediation. Mediation is a process by which a mediator assists 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 resolve the dispute.

The main purpose of mediation is to:

• Promote access to justice and restorative justice;
• To preserve relationships between litigants or proposed litigants which may become strained or destroyed by the adversarial nature of litigation;
• To facilitate an expeditious and cost effective resolution of dispute between litigants or potential litigants;
• To assist litigants or potential litigants to determine at an early stage of litigation or prior to commencement of litigation whether proceeding with the trial or an opposed application is in their bests interests or not; and
• To provide litigants and potential litigants with solutions to the dispute, which are beyond the scope and powers of the judicial officers.

Parties have the option of referring a civil dispute to mediation either through voluntary agreement or on application. A dispute may be referred to mediation either prior to commencement of litigation, or after commencement of litigation but prior to judgment, provided that where a trial has commenced the parties have obtained the authorisation of the court. A judicial officer may at any time after the commencement of litigation refer a dispute to mediation, if he believes that there is good reason for doing so.

If parties decide to refer the dispute to mediation, a written agreement will be concluded. 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 commencement of mediation sessions. A mediator will then be appointed by court in an attempt to resolve the dispute between the parties. In the event of the parties reaching settlement, the mediator will then assist in drafting a settlement agreement.

The role and function of the mediator:

A mediator has to inform the parties at commencement of litigation of the following:

• The purpose of mediation and its objective to facilitate settlement between the parties;
• The inquisitorial nature of the proceedings;
• The rules applicable to mediation sessions;
• The mediator’s facilitative role as an impartial mediator who cannot make any decisions of fact or law and who cannot determine the credibility of any person participating in mediation; and
• The fact that all discussions and disclosures, whether oral or written made during mediation are confidential and inadmissible as evidence in any court.

The issue of legal representation:

Parties to mediation proceedings must attend such proceedings in person and may be represented by legal representation. In instances where a company or a partnership is a party to the mediation proceedings, such entity has to be represented by an official from the company or partnership. Where the state or an organ of the state is a party to the mediation proceedings such entity has to be represented by an official assisted by a state attorney.

Conclusion:

Court-annexed mediation is an interesting concept which will facilitate litigants in a more cost effective and speedy manner as oppose to resorting to litigation in order to resolve their dispute. The process also attempts to preserve the relationship between parties which may eventually be destroyed due to the adversarial nature of litigation. It could necessitate the phasing out of bad claims which should not find their way into court. And encourage parties to settle their dispute without the means of litigation. On the other hand it poses the risk of being abused by parties and used as a delaying tactic.

Written by Meegan Henkeman, Schoeman Tshaka Attorneys