“To fight and conquer in all your battles is not supreme excellence; supreme excellence consists in breaking the enemy’s resistance without fighting” – Sun Tzu
Over the last few years Alternative Dispute Resolution (ADR) mechanisms, such as conciliation, mediation and arbitration, have become increasingly popular in South Africa, mainly due to the lengthy delays associated with court proceedings.
Although arbitration has always been the most utilised form of ADR processes, mediation likewise has long been recognised as an effective ADR method primarily in Family Law matters. The South African Judicial System has changed this by introducing a new rule, namely Rule 41A, which will see a drastic transformation in litigation in South Africa which follows international trends. Countries such as the USA, UK and Australia have been implementing mediation processes for years and South Africa has finally entered the realm of High Court aligned civil mediation.
Rule 41A came into effect on 9 March 2020. In terms of this rule parties to legal proceedings, which includes both action and motion proceedings, are compelled to consider mediation as a solution to their legal dispute before any steps in litigation can commence. Although this is a voluntary process, parties do not necessarily have to agree to the process. What is peremptory is that the party initiating the process is obliged to request that the other side consider whether it agrees to refer the dispute to mediation.
There is also a responsibility on legal practitioners who are now obliged to declare before the court that they have advised their clients to consider mediation as a means of resolving the dispute, failing which the court could penalise them with a costs order. If mediation has not been considered the court is obligated to manage the matter effectively and recommend mediation.
Should the parties agree on mediation, an independent and impartial person will be appointed as the mediator. The mediator will assist 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 process of mediation should be concluded within 30 days from the date of signature of the minute, provided that a Judge or the court may extend such time period for completion of the mediation session.
Where a dispute is referred to mediation, the parties must deliver a joint signed minute recording their election to refer the dispute to mediation and thereafter enter into an agreement to mediate. The time limits prescribed by the Rules for the delivery of further court documents will be suspended from the date of signature of the minute to the time of conclusion of mediation, however should a party consider that such suspension of the prescribed time limits is being abused, that party may apply to the court for the upliftment of the suspension of the prescribed time limits. The process of mediation should be concluded within 30 days from the date of signature of the minute, provided that a Judge or the court may extend such time for completion of the mediation session.
As the world has succumbed to Covid-19, this has had dire implications on all industries including the judicial system. Given these unprecedented times and measures which have been put in place such as social distancing, the implementation of mediation could not have been introduced at a better time. Mediation will now be a central platform for the legal system as it introduces an effective way to resolve disputes which can be conducted remotely.
Provision has been made for mediation or arbitration should civil claims be launched against the State during the lockdown. Minister of Justice Ronald Lamola said that government was considering the appointment of a retired judge to adjudicate mediation matters, which process would not only assist from a cost perspective, but would also provide a platform for aggrieved citizens who cannot afford high legal costs in challenging government decisions.
The introduction of Rule 41A will have a dramatic impact on the South African legal system and reduce the burden on the South African courts. This process will certainly alleviate the unmanageable pressure and backlogs within the judicial system, but most importantly will be a forum which will lead to matters being resolved amicably, speedily and effectively, achieving a win-win for all.