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Has your lawyer informed you about Mediation?

Has your lawyer informed you about Mediation?

Legal Practitioners have recently been turned away from the High Courts when requesting their Summonses and Applications to be issued by the Registrar, not because of the COVID-19 epidemic, but because their papers did not contain a newly introduced annexure, referred to as Form 27.

Form 27 and its associating Rule, Uniform Rule 41A, were gazetted on 7 February 2020 and came into operation on 9 March 2020. The Rule requires that individuals consider whether their legal dispute can be resolved through Mediation before approaching Court.

What is Mediation?

Mediation is a voluntary process which allows parties to a dispute the opportunity to appoint a qualified and impartial mediator, whose role it is to facilitate discussions and assist the parties in reaching an agreed settlement.

While Mediation has been an option available to parties for some time as a form of alternative dispute resolution, Rule 41A attempts to shine a spotlight on this device by requiring that the parties to a dispute, and their respective legal representatives, have considered Mediation as a means of recourse.

What does this mean for your legal dispute?

When approaching a legal practitioner for advice regarding your claim, and if your claim falls within the jurisdiction of the High Court, the legal practitioner will need to discuss the possibility of Mediation with you. Whether you agree to or oppose referral to Mediation will need to be indicated on a Form 27, which must be signed and annexed to your Summons or Notice of Motion.

The Form must clearly state your decision and the reasons for your decision.

If you would like to refer your matter to Mediation, the opposing party will also have to agree due to the voluntary nature of Mediation. Therefore, the Defendant or Respondent in the matter will need to indicate whether they agree to or oppose referral to Mediation when delivering their Plea or Answering Affidavit.

It is important to note, however, that notwithstanding the parties’ initial decision regarding the possibility of resolution by Mediation, the new Rule also provides that the Court may direct disputing parties to consider referral of the matter to Mediation before litigation may continue.

If all parties agree to refer the matter to Mediation, any time limits imposed by the Court Rules will be suspended for the Mediation to take place. The parties must commence the Mediation – by performing certain required steps, such as appointing a Mediator, delivering a joint minute and executing a written agreement to Mediate.

If the Mediation is successful and a settlement is reached between the parties, the written settlement agreement should be made an Order of Court and the Plaintiff or Applicant must withdraw their initial claim.

On the other hand, if the Mediation is unsuccessful, the matter should be referred back to the Court in order that litigation may continue.

Why is Mediation important?

The heavy burden placed on Courts and their resources is excessive, which has led to a global shift towards alternative dispute resolution.

Mediation is a cost effective and timeous process which allows matters to be settled outside of the Courts, thereby freeing up resources for the Judiciary to function properly.

Furthermore, Mediation generally allows for better preservation of commercial and personal relationships into the future. In other words, there is no “winner” or “loser” in a case, rather, the dispute is simply resolved with both parties being happy with the outcome.

The new Rule 41A is therefore a welcomed amendment as it will raise awareness of Mediation as an effective method of dispute resolution.

By Daniel Horwitz

Daniel’s areas of interest include Commercial Law, Dispute Resolution and Insolvency Law. He is a result orientated and meticulous individual who is passionate about the law and the future of law in South Africa and abroad.