Background

SA has a proud and very successful tradition of using mediation to resolve labour management, community, and family disputes. This stretches back to the 1980’s with the establishment of the Independent Mediation Service of South Africa (IMSSA), and the work done in the Family Courts. In addition, our transition to democracy was facilitated by the use of consensus building skills, employed by many of those who had worked as mediators, community organisers and union officials and led by the commitment to negotiation.

In the years following the 1994 elections, consensus-based processes such as mediation, conciliation and facilitation were included in as many as 50 pieces of legislation and are key processes in the way Chapter 9 Institutions, such as the South African Human Rights Commission and the Commission for Gender Equality, fulfil their mandates.

The Labour Relations Act (LRA) and the Commission for Conciliation, Mediation and Arbitration (CCMA) are probably the most well known examples of this initiative. Conciliation, mediation and facilitation are key functions of the CCMA. The CCMA apparently handles more cases per annum than any other similar dispute resolution service in the world.

The civil justice system has however been slow to embrace mediation. It was only in 2014 that ‘court annexed mediation’ was included in the Magistrates’ Court rules and in March 2020 High Court Rule 41A was enacted promoting mediation in matters destined for those courts. According to the Department of Justice, the objective of these Rules is to assist case-flow management in the reduction of disputes appearing before courts and to promote access to justice.

We clearly have the enabling framework in place, so why is it not being used?

This paper will consider how parties, lawyers, judges and the Department of Justice have responded to this new legislative framework and whether the objective of promoting access to justice is being achieved.

The Public

Conflict Dynamics mediation services received 116 enquiries about mediation over the last 19 months, and 31 mediations took place. Fifty percent of these cases were in fact workplace-related conflicts and disputes, rather than civil or commercial disputes. Our experience is that the average person does not understand the concept of mediation and frequently confuses it with arbitration, counselling and even meditation, hence the low conversion rate. 

Some solutions are to:

• publicise the benefits of mediation, lobby the public, traditional and religious leaders, the legislature and the legal profession
• be ambassadors for mediation, actively promote the process and benefits of mediation at conferences and meetings of professional bodies and associations
• invite key stakeholders in various sectors/industries to mediation workshops
• promote conflict resolution education from primary school to tertiary education in line with the e Conflict Dynamics Empowerment Trust work to promote effective conflict management and mediation in schools and to educate young attorneys about mediation.

The Lawyers

We heard from Judge Roland Sutherland, Deputy President of the Gauteng High Court, at a recent Conflict Dynamics mediator meeting that his research amongst Gauteng Judges reveals that there has been little to no use made of Rule 41A in the Gauteng High Court. Legal representatives apparently routinely respond to the Rule by saying their case is ‘not suitable for mediation’ and the judges do not engage them on this

Experience shows that most disputes are suitable for mediation. We do however find when discussing the idea of mediation legal representatives when they approach us at Conflict Dynamics that there is much they don’t understand about mediation.

There is a great deal of work to be done to educate lawyers about mediation: what it is, how it works, its benefits and the role they can play in the process. We undertake to engage the Legal Practice Council, the Law Society and Bar Associations to enlighten them. Particularly important is to open up a discussion about the ethical obligation lawyers have to properly consider all dispute resolution options including mediation, when advising their clients.

There is also the need to collaborate with the LPC to get a case screening process going in all courts with substantial backlogs and to assist with the backlogs using mediation. We could be helpful by offering free pre-mediation meetings and pro-bono mediations.

The Judges

We have already heard that judges in SA are generally passive when it comes to Rule 41A. There are a few exceptions worth considering.

In Koetsioe and Others v Minister of Defence and Military Veterans and Others, a 2021 matter, Judge Davis stated:

[Rule 41A] not only requires a notice but clearly contemplated that a party must have considered the issue earnestly prior to exercising its election. This is clear from the requirement that a party must state its reasons for its belief that a dispute is or is not capable of being mediated.

In a 2023 case, Hilary Maclean v The Butcher Shop and Grill CC 6, Acting Judge AD Maher considered a submission by the defendant that the plaintiff should be liable for costs because of a refusal to mediate. The judgment is worth reading for its discussion about the implications of Rule 41A and the conduct of attorneys in particular.

A significant and early decision in relation to costs was the case of MB v NB (2010) (aka Brownlee v Brownlee) (3) SA 220 (GSJ) in which the court precluded the attorneys from recovering the full fees that they would otherwise have charged their clients.

These judgements are heartening but few and far between.

Judge President Dunstan Mlambo recently noted that civil trials in the Gauteng High Court are currently being allocated for January 2029 and the waiting time between the date of allocation of civil hearing dates and the hearing date itself has reached an astonishing period of four-and-a-half years. Under the prevailing circumstances, the civil justice system is failing SA citizens and depriving them of their section 34 constitutional right of access to the courts. Mediation will assist in addressing these bottlenecks to justice if judges know the process, can insist on mediation in appropriate cases and order costs where parties resist without reason.

The Department of Justice and Constitutional Development

The Department, through the Rules Board, has taken some steps towards encouraging the use of mediation to streamline the litigation process and enhance access to justice. The Magistrates and High Court Rules concerning mediation have been in effect for quite some time, as has Rule 37 which sets out the matters that must be dealt with at a pre-trial conference. It includes sub-rule 37(6)(c), which requires parties to minute that every party claiming relief has requested their opponent to make a settlement proposal and that the opponent has reacted to the request. Sub-rule 37(6)(d) requires the parties to minute whether any issue has been referred by the parties for mediation, arbitration or decision by a third party and on what basis it has been so referred. 

Implicit in these provisions, read with sub-rule 37(5), is that the parties must have considered settlement and must have considered referring one or more issues to mediation, arbitration or decision by a third party. 

Rule 34 offers parties the opportunity to lodge without prejudice monetary offers or tenders of settlement with the court. Such offers may not be disclosed to the court at any time before judgment has been given. Once judgment has been given, they may be brought to the notice of the court as being relevant to costs.

These offers may become more important to parties who wish to demonstrate to the court that they have in fact considered settlement in the manner required by the rules, but judges and lawyers appear to ignore these provisions, and we can see the consequences for the public in terms of our frustrated access to justice in South Africa.

Conflict Dynamics has committed itself, along with other mediation providers, to do the following in relation to the Judiciary and the Department of Justice:

• Engage the Chief Justice and the Minister of Justice to host a workshop involving judges and magistrates on the broader application and/or stricter enforcement of the provisions of Rule 72 (MCR) and Rule 41A (HCR);
• Write to the Rules Board regarding amendments to Rule 72 (MCR) and Rule 41A (HCR) and pre-trial procedure rules to propose additional exit points to mediation from litigation.

Professionalisation

I can’t end without a mention of professionalisation, and the importance attached to our developing of a professional body responsible for education, standards, accreditation, specialization, tiers, and CPD. With a professional body, we are more likely to be consulted by the Chief Justice, LPC national and provincial offices, bar associations, magistrates, judges, state attorney’s offices, SAJEI, Department of Justice, Justice College, amongst other gatekeepers in litigation

Finally, so where to now for civil and commercial mediation in South Africa? Well there is much to be done if mediation is to be used as a tool for more effective dispute resolution of civil and commercial matters. At this stage that work is lobbying, advocacy and education of the public and the stakeholders in the litigation pipeline and systems in the court to refer matters to mediation and hold parties and their representatives accountable for the ethical and professional implementation of mediation.