ON DECEMBER 1, a pilot project came into effect where designated magistrate’s courts in Gauteng and the North West have introduced court-based mediation.
A litigant will now be able to approach the registrar in writing and request a mediation prior to instituting legal action, either by a summons or notice of motion.
The reasons for court-based mediation are many, but its foundation is based on the need to ensure that access to justice is available to all, and to alleviate the burden on our courts which are inundated with civil law suits.
It will mean a dispute can now be referred to mediation prior to the institution of legal proceedings or after their commencement but before judgment is handed down.
The registrar has greater powers to convene conferences between parties to a dispute and to explore whether they are amenable to holding a mediation.
If they are, the registrar will assist the parties to agree the appointment of a mediator from a list to be published by the justice and constitutional development minister. If the parties cannot agree, the registrar can select a mediator.
The registrar must assist the parties to conclude a mediation agreement and liaise with the appointed mediator to arrange a date, time and venue.
The office of the registrar will play an important administrative role in ensuring that parties mediate disputes.
A litigant can also apply to the court to have a matter mediated and the court has the power to refer the matter to the Registrar to be mediated if there is agreement from the other party.
The court can also mero muto inquire from the parties whether a dispute should not be referred to mediation and if the parties have considered mediating the dispute.
Favoured
In all cases, the pleadings or affidavits filed will serve as statements of claim and statements of defence.
If certain pleadings of affidavits have not been filed at the time that a matter is referred for mediation, parties will be required to file statements within a certain prescribed time period.
In my experience, bringing pleadings and statements into the mediation process can be counter-productive as parties inevitably refer to their respective positions outlined in the pleadings.
The mediation process is aimed at getting the parties to move from their respective corners in a safe environment that ensures and guarantees confidentiality of information shared with the mediator.
The process also encourages the parties to exchange information through the mediator without fear that such information can be used against them at a later stage in litigation, if the mediation does not result in settlement.
I have always been in favour of keeping pleadings out of a mediation unless there are justifiable and necessary grounds.
It will, therefore, be interesting to see how and whether the requirement to file pleadings and statements will impact the success rate of mediations held through the courts.
The intention is that court-based mediation will be rolled out to other magistrate’s courts and ultimately the high courts.
Whether or not litigants will make use of the process is something that will have to be monitored closely. It is hoped that a database will be created to record both the number of matters in which parties agree to mediate and the number of matters that settle successfully through the process.
This information is crucial during the pilot phase as it will indicate its success or failure and whether it will achieve the goals of ensuring access to justice for all and alleviating the burden on our courts.
Mediation is a method of resolution I believe is effective in even complex commercial disputes. However, its implementation into the court system must be done correctly if it is to be effective.
Other African countries like Nigeria and Rwanda have had court-based mediation as part of their justice system for some time, and so it will be interesting to see how South Africa fares with its attempt to introduce the process.
Munya Gwanzura is a director in the dispute resolution practice at Cliffe Dekker Hofmeyr.