The Rules Board recently published Draft Mediation Rules for the High and Magistrate's Courts. This is a potentially massive step in the right direction, however there are a number of possible fatal pitfalls in the Rules that have been proposed and in order to make them fly there is a lot of work that needs to be done.
There are a number of features of the Rules which are immediately striking:
- That the Minister of Justice and not the Office of the Chief Justice will regulate the statutory mediation system. This may raise serious issues concerning the separation of powers. The regulation by the Minister may also be overly centralised instead of allowing the mediator agencies to play a bigger role in the selection and quality control of mediator panels.
- There is no expressed provision for the parties themselves to agree on a private mediator and only if there is no agreement to be compelled to make use of the statutory system. There is a need to encourage a synergy between private and statutory mediation rather than to potentially hinder it.
- There is no provision for payment of the mediation administrator as opposed to the mediator.
- The prescribed mediator fees will be critical particularly if they are not on a sliding scale depending on the value and magnitude of the matter.
- The choice and accreditation criteria for mediator administrators will be critical.
- The choice and accreditation criteria for mediators will be critical.
- The choice and accreditation criteria for mediator trainers, coaches and assessors will be critical.
A joint submission has been made to the Rules Board about the Draft Mediation Rules. This was a unique joint initiative by the private dispute resolution industry in South Africa. Parties to the submission are the Dispute Settlement Accreditation Council, the Africa Centre for Dispute Settlement, the Mandela Institute, Tokiso Dispute Settlement (Pty) Ltd, Equillore Group Limited, the Association of Arbitrators Southern Africa, Conflict Dynamics cc and the Arbitration Foundation of South Africa (AFSA). Follow the link to read the submission.