Rule 41A and Mediation Advocacy

22 September 2021

In the past mediation was a sideshow for many legal practitioners. It could easily be ignored or side-stepped. This is increasingly more difficult to do because of the introduction of Rule 41A into the Uniform Rules of Court. Because of Rule 41A even reluctant parties are now required to commit to a mediation process, or face punitive cost measures. The increasingly strong stance of the Courts in ensuring that Rule 41A is complied with (see the recent Court Directive issued in Limpopo Division of the High Court[1]) means that even more cases will in the future be mediated.

This means that most legal practitioners will at some point have to participate in mediation, and will have to understand how to best represent their parties in mediation proceedings.

Many progressive practitioners have already actively embraced the opportunities offered by Rule 41A. They see it as an effective mechanism to try and get an early positive result for their clients. In order to use this process effectively, practitioners need to add some essential skills to their armoury.

An effective mediation representative (“mediation advocate” seems to be the term commonly used for a legal practitioner representing a party in a mediation process), needs to have at least the following skills:

 

  • Understanding the mediation process

Legal practitioners need to know what will happen during the mediation process, and what they are required to do. What are the basis rules of the mediation process? What is the role of the mediator? How does the mediation process unfold? What am I required to do at the various stages of the mediation process?

 

  • Understanding the logistics of mediation

Legal practitioners are involved in setting up mediation processes and need to understand how this works. How is a mediation process initiated? Where do I find a qualified and reputable mediator? How much, and when should we pay for mediation? What does an agreement to mediator look like?

 

  • Understanding why mediation works

At least 75% of commercial mediation result in settlement[2]. A good mediation advocate will want to know more about why mediation is effective in achieving a settlement. Understanding the methodologies used by mediators, and the psychology of the process is essential for being a good representative.

 

  • Developing a negotiation strategy

Mediation is a facilitated negotiation process.. Preparation for the mediation process should produce a clear negotiation strategy that identifies (i) why settlement is important for both parties, (ii) what a realistic outcome (or goal) for the negotiation might be, and (ii) the tactics that will be used to achieve that outcome.

This requires a detailed analysis of the personalities involved, of the dispute, of the parties’ needs and interests, and of the alternative outcomes. Based on this you need to assist your client in quantifying what a realistic settlement might look like – in other words, an outcome that is more attractive than their other alternatives (such as ongoing litigation).

 

  • Preparing the client for mediation

Mediation advocacy is also about preparing your clients for the mediation process. This not only means giving them an understanding of the process but also getting them to make a mind shift to understand that the mediation process is a non-adversarial exercise aimed at resolving their dispute in the most realistic manner. If they approach the process with realistic expectations, it has a much better chance of success.

All of this combines to present as a whole new skill set for legal practitioners. Those who are prepared to invest in developing their skills will have better results than practitioners who come unprepared. As with most things in life, a negotiator is more effective when acting purposely, rather than by simply reacting to the other party or parties.

Find out more about our forthcoming Rule 41A and Mediation Advocacy course being held on 22 October 2021. Click HERE for details and to book.

- Hendrik Kotze