Since time immemorial, one thing is certain – disputes are inevitable. Human beings disagree, they fight, they squabble, they argue.  Conflict seems to be as much part of being human as living and breathing. And with the inevitability of disputes, comes the need to resolve these disputes. Mediation is therefore as old as humankind and has been used as a method of dispute resolution in various different cultures for more than 3000 years.

There are references to mediators – known by many different names such as intercessor, interpolator, conciliator, interlocutor and mediator - in Roman law. Chinese texts also mention Wu You, an officer in the Western Han dynasty (206 BC - 24 AD), who whenever he had lawsuits to adjudicate would go into the streets and the homes and persuade the people to rather mediate and reconcile.

The benefits of mediation

The benefit of mediation lies in the fact that disputes are resolved quicker, as well as being a means of avoiding unnecessary or drawn-out litigation and saving on costs. This makes the resolution of disputes more accessible and more cost-effective.

Uniform Rule 41A was formulated by the Rules Board to address backlogs in the finalisation of court cases in the High Court as a result of congested court rolls.

When legal proceedings are instituted, be it by way of action proceedings (summons) or application (Notice of motion), what litigants seek is the speedy resolution of their disputes. When matters are delayed by congested court rolls, in some cases resulting in postponements and costs, litigants feel that they are being denied access to justice. 

The Rules Board considered that such problems can be resolved by the introduction of a new Rule in the Uniform Rules of Court, namely Uniform Rule 41A to provide for the settlement of cases by attempts at mediation before a case proceeds to be heard in court. The Rule is intended to incorporate an effective, less adversarial resolution mechanism, that litigating parties must consider in order to resolve their disputes. 

This means that litigating parties will experience benefits through a reduction in lengthy trials as the parties are required to furnish a Minute at the conclusion of the mediation as to whether full or partial settlement was reached, whether the mediation was not successful and the issues upon which agreement was reached and which do not require hearing by the court (subrule (8)(b)). 

Additional benefits will arise from the speedier resolution of court cases and therefore legal costs will be reduced, ultimately therefore enhancing access to justice.

The role of the Rules Board

Regarding the role of the Rules Board, it is important to highlight the work being done by the Board. The Board was established in terms of the Rules Board for Courts of Law Act, 1985.  The Rules Board may, with a view to the efficient, expeditious and uniform administration of justice in the Supreme Court of Appeal, the High Court of South Africa and the Lower Courts, from time to time on a regular basis review existing Rules of Court and, subject to the approval of the Minister of Justice and Correctional Services, make, amend or repeal rules for the Supreme Court of Appeal and the High Court of South Africa.

As part of the Board’s rule-making and the review process, the Board considered introducing into the Uniform Rules, a rule by which parties to litigation can resolve their disputes without going through lengthy and costly court hearings but to voluntarily enlist the services of a mediator to assist them resolve their dispute. The Rules Board introduced Uniform Rule 41A and formulated a Form 27 (Notice of agreement or opposition to mediation). Form 27 is intended to provide the form for the notice of agreement or opposition to mediation to be given by the parties. 

Uniform Rule 41A does not regulate the mediation process itself, which is conducted outside the court system. The Rule requires parties to consider mediation and regulates the referral of the matter to mediation and the further conduct and course of the litigation if mediation is agreed to by the parties. Mediators as in terms of Uniform Rule 41A will be chosen by the parties from any source and not from a panel of mediators accredited by the Minister. 

A further aim of the Rule is to supplement Judicial Case Management and the provisions of Uniform Rule 37A, which introduced and regulates Judicial Case Management. Uniform Rule 41A was published in Government Gazette No. 43000 on 07 February 2020 and is in operation since 09 March 2020.  

Before the promulgation of Uniform Rule 41A, there was no mechanism in the High Court which provides for mediation as a method of dispute resolution. The only mechanism was a court hearing. 

The requirements of the Rule

Before the trial or hearing of a matter by a Judge, there are several procedures that parties in civil litigation should comply with.

The Rule requires that parties must consider at the earliest stages of the litigation process whether mediation is possible.  By making it mandatory for parties to consider a referral of the dispute to mediation, the dispute resolution mechanism is brought to the fore very early in the litigation process. 

Reasons furnished by the parties agreeing to or refusing to mediate may be considered by the court when an order for costs is considered.

Conclusion

Mediation, not being an adversarial process, will through an impartial and independent person bring about speedier and less costly resolution of disputes and ultimately promote access to justice. 

The mediation profession has a vital part to play in contributing to the Rule’s success by ensuring that qualified mediators are suitably skilled, accessible to litigating parties and their legal representatives, and charge fees that are reasonable and commensurate with the service that is provided.  In addition, it may be prudent to approach the Legal Practice Council to create awareness of the mediation services on offer and to inform the general public, by way of popular media, as to the benefits of mediation.

'Mediation and Rule 41a - What Lawyers Need to Know '- join us for a half-day workshop on 13 September 2022 - 09.00 to 13.00. To attend Book here