Mediation, new Rule 41A & Uniform Rules of the High Court

With the recent changes to the Uniform Rules of Court, parties are now compelled to ensure that they have considered the possibility of resolving their disputes via mediation prior to approaching the High Court to issue and/or enroll matters. With the advent of amended Rule 41A, not only are legal practitioners obliged to canvass the idea of mediation with their clients at the inception of the litigation process (if not earlier); Rule 41A now invites Judges and Rule 37 Case Management Judges to do the same as litigation proceedings progress. Judges, Rule 37 Judges or the Court may now at any stage before judgment direct the parties to consider the referral of their dispute to mediation, whereupon the parties may agree to refer the dispute to mediation.

South Africa’s international counterparts, such as Australia, has accepted mediation into its civil justice system decades ago in proven attempts to alleviate the burden on its Court rolls, broaden access to justice and to save costs for prospective litigants. In the Australian states of New South Wales and Victoria, mediation has always played a prominent role in these states’ civil justice systems via the civil procedure of ‘Mandatory-Court-Referred Mediation’.

In South Africa, amended Rule 41A is not the first time that mediation makes an appearance in its civil justice system. In 2011, upon the mandate of the former Department of Justice and Constitutional Development, the Rules Board of South Africa developed and introduced draft ‘Mandatory-Court-Based Mediation Rules’ (on Higher and Lower Court levels) as a possible means of overhauling the challenges within the South African civil justice system, which appears to be similar to the Australian approach. These draft Rules, however, stopped short of promulgation principally due to a lack of enabling legislation, and the misnomer of whether one can compel parties to partake in a voluntary process. The Rules Board eventually settled on changing these Court-Based Mediation Rules to voluntary rules on a Lower Court level only with very little effect to date since the promulgation of these voluntary rules, primarily due to a lack of awareness. However, now at Higher Court level with amended Rule 41A, in the absence of compelling parties to mediate their disputes, they are now compelled to consider mediating their disputes. This appears to be a greater step in the right direction at the very least for the South African civil justice system and hopefully with greater impact from 2020.

Adriaans is impressed with the gaining recognition of mediation in South Africa and looks forward to this Alternative Dispute Resolution (ADR) tool playing an integral role in civil dispute resolution going forward. We believe that these break-through changes to the Uniform Rules of the High Court are only but the beginning to the changing tides of the South African civil justice system.

At Adriaans we offer accredited mediation services as a method of alternative dispute resolution. For more information on our mediation services and/or insights into mediation, contact our Senior Associate, Ms. Whitney Maclons.

Whitney holds a Masters Degree (LLM) in mediation (ADR, Mercantile Law) and is both a national and international UK Accredited Mediator since 2016. Herewith, an online link to her 2014 full dissertation on the topic of ‘Mandatory Court Based Mediation in the South African Civil Justice System’, which delves into inter alia the Australian civil justice system as mentioned in this article as well as South Africa’s 2011 draft mediation rules: http://etd.uwc.ac.za/xmlui/bitstream/handle/11394/4407/maclons_w_llm_law_2014.pdf?sequence=3

Whitney currently serves a local Magistrates’ Court in its pro bono Mediation Programme and enjoys writing about mediation in order to promote awareness. Whitney has released several short blog articles on the Adriaans’ website on the subject matter. Here are links to her earlier writings:

• https://adriaansattorneys.com/2017/12/11/the-practical-commencement-of-the-mediation-process/
• https://adriaansattorneys.com/2017/10/23/awareness-of-the-practice-and-applicability-of-mediation-in-civil-law/
• https://adriaansattorneys.com/2017/05/24/mediation-and-the-prevention-of-illegal-eviction-from-and-unlawful-occupation-of-land-act-no-19-of-1998/
• https://adriaansattorneys.com/2017/05/24/psssssst-have-you-considered-mediation/
• https://adriaansattorneys.com/2017/05/24/mediation-could-save-you-significant-costs-in-litigation/
• https://adriaansattorneys.com/2017/05/24/court-annexed-mediation-and-section-34-of-constitution/

This article is a general information sheet and should not be used or relied upon 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)