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Awareness of the practice and applicability of mediation in civil law

As briefly canvassed by the writer in a former article, awareness appears to be the biggest hindrance to the wide-spread use of mediation in the civil and commercial law sectors, with litigation still being the primary method of dispute resolution in South Africa.

It appears that lay-persons are uncertain as to the alternatives available to them when approaching civil disputes and should their matters be referred to their attorneys, more than likely, litigation would be recommended due to the common practice of our civil justice system.

Most associate mediation with Labour Law and Family Law disputes due to common knowledge legislation pertaining to these areas of practice. However, very few are aware that mediation finds application in a wide spectrum of other areas of civil law, which prescribe/recommend mediation in terms legislation. Interestingly, these areas of law include:

  • Company/commercial disputes (Companies Act 71 of 2008);
  • Oil and gas as well as electricity disputes (Gas Act of 2001, Petroleum Pipelines Act 60 of 2003, Electricity Regulation Act 4 of 2006);
  • Administrative and governmental disputes (Constitution of the Republic of South Africa 1996, Local Government: Municipal Finance Management Act 56 of 2003, Local Government: Municipal Systems Act 32 of 2000, Public Protector Act 23 of 1994, Development Facilitation Act 1995);
  • Human rights disputes (Human Rights Commission Act 54 of 1994, Pan South African Language Board Act 59 of 1995, Commission of Gender Equality Act 39 of 1996, Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000, Promotion of National Unity Act 34 of 1995);
  • Education disputes (Further Education and Training Colleges Act 16 of 2006, Higher Education Act 101 of 1997);
  • Medical disputes (Health Professions Act 56 of 1974);
  • Consumer disputes (Consumer protection Act 68 of 2008, Financial Advisory and Intermediary Services Act 37 of 2002, Financial Services Ombud Scheme Act 37 of 2004, National Credit Act 34 of 2005, National Payment System Act 78 of 1998, Pension Funds Act 24 of 1956);
  • Property and land disputes (Land Reform (Labour Tenants) Act 3 of 1996, Estate Agency Affairs Act 112 of 176, Extension of Security of Tenure Act 62 of 1997, Restitution of Land Rights Act 22 of 1994);
  • Evictions (Prevention of Illegal Eviction from Unlawful Occupation and Land Act 19 of 1998, Rental Housing Act 50 of 1999);
  • Environmental disputes (National Environmental Management Act 107 of 1998);
  • Sport-related disputes (Sports and Recreation Act 110 of 1998, South African Institute for Drug-Free Sport Act 14 of 1997);
  • Water and forestry affairs (National Forests Act 84 of 1998, National Water Act 36 of 1998);
  • Transportation disputes (National Land Transport Act 5 of 2009, National Land Transport Transition Act 22 of 2000);
  • Coastal and marine-related disputes (National Ports Act 12 of 2003, Antarctic Treaties Act 60 of 1996); and
  • IT and Electronic-related disputes (Skills Development Act 97 of 1998, State Information Technology Agency Act 88 of 1998, Telecommunications Act 103 of 1996).

[Statues referred to in Commercial Mediation A User’s Guide 2nd Edition, J.Brand, F.Steadman, D Todd].

On a non-legislative front, mediation finds helpful application to common disputes pertaining to breach of contract, debt collection, delictual claims, construction and building disputes, and, with gaining popularity, medical negligence disputes.

It is remains evident, however, that due to a lack of awareness of mediation, particularly mediation as provided for statutorily, and due to the common practice of our civil justice system, the practice of mediation remains unfamiliar to many, which directly hinders it’s useful and widespread use.

As the well-known adage dictates, “Rome was not built in a day”, it may be helpful to recommend that over time, aggrieved lay-persons, before resorting to litigation to resolve their disputes, that they seek legal counsel from law firms where mediation is offered as a service alternatively that they approach private mediation institutions, in order to ascertain whether mediation may find application (statutorily or not) to their matters and thereby spreading the awareness of mediation and promoting its vastly effective use in our civil justice system.

Prepared by:

Whitney Maclons | Associate | Dispute Resolution

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)