Rule 41A – What does it mean for lawyers?

23 March 2020

High Court Rule 41A which came into operation on 9th March and which requires parties to consider mediation before proceeding with litigation in the High Court is good news for lawyers. It gives them the opportunity to become mediators themselves, to represent their clients in a new forum as mediation advocates, and to give advice on a range of issues that their clients will need help with when they engage in mediation.

Many parties do not understand what mediation is and how it differs from other processes such as litigation, arbitration, and adjudication. They also do not know what happens in the process and how successful it is in resolving disputes quickly, cheaply, and fairly. Clients also need advice on whether the time is right and whether it is appropriate to mediate in the particular circumstances of their case.

As we explained in a previous blog, it is vital for parties to choose a skilled, trained and accredited mediator and lawyers can advise clients on this. They can also advise clients on how to encourage other parties to go to mediation and on what the consequences are for breaching Rule 41A and unreasonably refusing to agree to mediation. Once parties have agreed to mediate, lawyers can assist parties to settle the agreement to mediate and they can help clients prepare for the mediation.

As mediation is, in essence, a facilitated negotiation which is very different from litigation or arbitration, it requires a distinct kind of preparation. Whereas some people think that the only answer to a problem is a rights-focused, legal one, experience teaches us that this is not so. Good mediation is not a form of mini-trial or truncated hearing where the mediator decides who is right or wrong in law and then pressures the parties into accepting the mediator’s view of what a fair settlement should be. Properly trained and skilled mediators do something different. They have a thorough grasp of modern dispute resolution, negotiation, and mediation theory and practice. They, therefore, seek to help parties see beyond legal outcomes and try to help them find outcomes that are of greater value to both than the best outcomes that litigation can deliver. Lawyers who are also trained and are experts in modern negotiation theory and practice can prepare their clients for such mediations.

One part of that preparation is risk analysis. Parties need to assess, as accurately as possible, what their worst, best and probable alternatives are to a negotiated outcome (their WATNA’s, BATNA’s and PATNA’s) and how these can be adjusted. This helps them determine their bargaining range and lawyers are well equipped to help them do this. There are many other questions that need to be answered during preparation such as: Who should attend the mediation? What are the parties’ positions, interests, fears, and concerns? What are their strengths weaknesses, opportunities, and threats? What documents should be disclosed? Lawyers can help clients answer these and many other preparation questions in a strategic planning exercise prior to the mediation.

Once clients have been helped to properly prepare for mediation, lawyers can assist them in the mediation itself to achieve optimum outcomes. This involves helping them through all the stages of the mediation - the opening; exploring and analysing; option generation; option evaluation and choice stages; and very importantly, in the tough bargaining; finalising agreement; and settlement agreement drafting stages. All this requires special skills that trained lawyers either have acquired or will need to acquire.

Modern lawyers do not fear mediation. Instead, they appreciate that they can play a valuable role in the process. They understand that there are no Constitutional obstacles to the process, and they recognise that the encouragement of mediation in the High Courts and in the Magistrates Courts must be taken seriously and not regarded as just another procedural hurdle on the way to trial. Socially conscious lawyers also know that they have a duty to contribute to the public’s access to quick, inexpensive and fair justice. This is even more essential at a time when the COVID-19 crisis is making access to the courts much more difficult, time-consuming and expensive than usual. Mediation, particularly remote or on-line mediation, provides an excellent alternative.   

Let’s hope lawyers take advantage of the many opportunities offered to them as mediation becomes mainstream in our civil justice system.

The Conflict Dynamics CD Direct panel of mediators are trained and accredited to international standards. They have a wealth of experience with both face to face and remote or on-line mediation. Conflict Dynamics also offers training and coaching to lawyers on how to prepare and represent their clients in mediation. Our book will be of great assistance to lawyers: Commercial Mediation: A User's Guide 2e (eBook) Brand, J ; Steadman, F ; Todd, C

John Brand

- John Brand