COURT-ANNEXED MEDIATION: HOW IT WORKS
LEON TERBLANCHE 05 APRIL 2016
What is Court –annexed Mediation?
Court-annexed mediation is governed by rules made by the Rules Board for Courts of Law and approved by Minister Jeff Radebe, then Minister of Justice and Constitutional Development in terms of the Rules Board for Courts of Law Act 107 of 1985 and published as Chapter 2 of the said Act on the 18th of March 2014 under Government Notice R.183.
The objectives of Chapter 2 are, in short;
- To give effect to Section 34 of The Constitution of the Republic of South Africa, 1996, and
- To give effect to resolutions of the Access to Justice Conference of July 2011 introducing alternative dispute resolution mechanisms.
The main purposes and advantages of Court-annexed Mediation (Chapter 2) are to;
- Promote access to justice
- Promote restorative justice
- Preserve relationships between litigants or potential litigants which may become strained or destroyed by the adversarial nature of litigation
- Facilitate an expeditious and cost effective resolution of a dispute between litigants or potential litigants
- Assist litigants or potential litigants to determine at an early stage of the litigation or prior to the commencement of the litigation whether proceeding with a trial or an opposed application is in their best interest or not
- Provide litigants or potential litigants with solutions to the dispute, which are beyond the scope and powers of judicial officers.
But how does it work?
The process can be segmented into six stages or steps of which the last step can have two outcomes.
How does a matter/dispute get referred to court-annexed mediation?
- A party can refer a dispute to mediation prior to litigation. [Rule 77(1)]
- A party can at any time during litigation, but before trial, refer the matter to litigation, but before trial, refer the matter for mediation. [Rule 78(1)(a)]
- After the commencement of the trial, but before judgement, a party can apply to the court to refer the matter to mediation. [Rule 78(2)]
- Prior to or during the trial, but before judgement, a court can inquire into the possibility of mediation. [Rule 79(1)]
- Parties can consent and request the court refer the matter to mediation. [Rule 79(2)]
Inviting parties to meet for mediation.
Once mediation is requested, the Clerk or Registrar of the Court will ask all parties to attend a meeting within 10 days of the request. During the meeting, the clerk or registrar will explain the mediation process and its benefits in saving time and costs to the parties [Rule 76(1)(a)]. Parties will be liable for mediator’s costs and for their own legal costs [Rule 76(1)(b)]. Where a company, partnership or the state is a party they will be informed that they must be represented by someone who has the authority to settle on their behalf [Rule 85(2)]. Parties can decide whether to mediate.
Drafting a Mediation Agreement.
A mediator will be appointed from a schedule of accredited mediators.[Rule 86(1)] and [Rule 77(4)(a)]
- The clerk or registrar will confer with the mediator and set a date, time and venue for the mediation process.[Rule 77(4)(b)]
- The clerk or registrar will also assist the parties to draft a mediation agreement.[Rule 76(2)(c)]
The agreement should include:
- The names, addresses, email and fax numbers of all parties.
- A statement that they have agreed to mediate;
- the date, time and venue of the mediation;
- the name of the mediator, and the time period allocated for mediation.
- A statement about confidentiality and privilege attached to disclosures made at the mediation and the consequences of any party not abiding by the agreement.
- A statement to the effect that the terms of the agreement would not be binding on anyone who is not party to the settlement agreement.[Rule 77(4)(c)]
Sending a Statement of Claim and a Statement of Defence to the mediator.
- A party claiming relief must lodge a statement of claim with the clerk or registrar within 10 days of signing the mediation agreement and send this to all parties.[ Rule 77(5)]. The party against whom the relief is being claimed must then lodge a statement of defence with the clerk or registrar and send a copy to all parties [Rule 76(2)(d)(ii)] and [77(6)].
- In action matters, if the pleadings have closed, the summons or declaration and plea will serve as the statement of claim and the statement of defence.[ Rule 78(4)(a)].
- In application matters, the founding affidavit will serve as the statement of claim and the answering affidavit will serve as the statement of defence.[ Rule 78(4)(c)]
The mediation session:
- The mediator will have received the mediation agreement and a statement of claim and statement of defence (or pleadings).
- The mediator will conduct the mediation process.
- At the mediation the mediator must objectively facilitate a settlement. [Rule 80(1)(a)]
- Anything said orally and in writing is confidential and cannot be used in a court of law as evidence unless it is recorded in a settlement agreement signed by both parties or discoverable in terms of the rules of court or any law.[Rule 80(1)(e)]
Finalising the dispute where there is agreement if the dispute is completely resolved, the mediator will assist the parties to draft a settlement agreement.[Rule 80(1)(h)]
The agreement must be in writing and signed by both parties [Rule 82(6)]. This agreement must be transmitted to the clerk or registrar of the court [Rule 82(1)]. On the request of the parties, the settlement agreement will then be put before the judicial officer for either noting that the dispute has been resolved or that both parties agree to have the agreement made an order of court.[Rule 82(4)]
Finalising the dispute where there is no agreement;
If the matter in dispute is not settled, the mediator must send a report to the clerk or registrar within 5 days of the conclusion of the mediation [Rule 80(1)(i)]. The clerk will file the report and the parties would be free to continue litigation on the issue in dispute.[Rule 82(5)]
Court-annexed mediation gives parties more control over the outcome of their dispute. Mediation saves time and maintains relationships. The process is much cheaper as there is no long, drawn-out litigation involved.