Mediate rather than litigate

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Wikipedia’s definition of mediation is “a structured, interactive process where an impartial third-party assists disputing parties in resolving conflict through the use of specialised communication and negotiation techniques”. Mediation, when utilised in law, is a form of alternative dispute resolution. Parties that are involved in a dispute may choose the mediation process to resolve the issues between them, either before commencing with legal action or just after legal action has been instituted but before Judgment has been handed down. It is a voluntary process that must be agreed upon by both parties.

The objection of mediation is to obtain a resolution that is mutually agreeable to both parties. The appointed mediator must remain impartial throughout the mediation process and cannot impose a decision on the parties. They cannot judge or arbitrate, but rather assist the parties by advising them, which may, ultimately, result in the parties achieving a settlement agreement. It does happen that mediation does not resolve the dispute, but as a consequence of the discussions, the parties can identify and limit the key issues in dispute, discuss options to resolve the disputes and investigate areas of compromise.

On the 9th of March 2020, South African courts entered in the new era of the civil justice system. An amendment to the Uniform Rules of the High Court, Rule 41A, was introduced, requiring parties to consider mediation before litigation in the High Court. The Court may also recommend mediation to the parties if it deems it appropriate in a specific case. The High Court is, at times, intolerant of legal practitioners, who ignore the potential benefits of using alternative dispute resolution to resolve, define, limit, or dispose of disputes that are pending before the courts. It is now mandatory that Form 27 is to be attached to new matters being instituted in the High Court.

On the 1st of December 2014, the Rules of Voluntary Court-Annexed Mediation (Chapter 2 of the Magistrates’ Courts Rules) were approved by the Minister and came into operation. The objective of this chapter is to give effect to Section 34 of the Constitution of the Republic of South Africa 1996: “everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum”.

The question is, why would parties mediate to achieve a settlement rather than have a court determine a winner and loser? The following are just a few reasons.

  1. Faster and cheaper: The mediation process can resolve the dispute more swiftly than litigation and without incurring exorbitant legal fees.
  2. Flexibility: The mediation process allows the parties involved to tailor the proceedings to their specific needs, as well as control over the outcome.
  3. Confidentiality: The mediation process is a confidential process, providing the parties with a sense of security, enabling them to negotiate in an open and honest environment.
  4. Relationships: The mediation process provides a forum where parties can resolve their dispute, while still maintaining their relationship.

In recent months, during the world-wide pandemic, mediation has come to the fore in the courts in order to reduce the litigation case load that the court is burdened with.

Successful mediation lays the foundation for collaborative, non-confrontational problem solving, which preserves important relationships.

Reference List: 

  • Constitution of South Africa 1996
  • Uniform Rules of the High Court

This article is a general information sheet 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 your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)