Rule 41, Mediation and COVID-19

How and why should alternative dispute resolution be looked to for resolving legal disputes?

When legal disputes arise, parties are quick to flock to the Courts for relief. However, COVID-19 has had dire consequences on South Africans’ constitutional right to have their disputes resolved by a Court; strict social distancing measures imposed under the country’s lockdown have limited parties’ access to Courts and impeded the delivery of justice.

Employee Rights During Business Proceedings

Rule 41 of the High Court

A recent amendment to the High Court Rules compels parties considering litigation to first attempt mediation to resolve their dispute. The party that brings the application or action must request that the other party consider mediation.

If the parties choose not to mediate, they must state in writing why they believe mediation cannot resolve the dispute. Moreover, at any point during court proceedings, the court may recommend alternative dispute recommendation as a possible means of resolving the dispute.

Mediation Process

1. Agreement

Parties agree, in writing, to mediate their dispute and to appoint a mediator.

2. Mediation Commences

The mediation will commence as per the date stipulated in the contract. Parties must attend the mediation in person (or be present on the online platform). The mediator usually explains how mediation will be conducted.

3. Mediator is Appointed

A mediator, fulfilling the role of a facilitator, will be appointed to assist the parties in identifying the issues and finding a solution that suits both parties. The mediator may conduct separate or joint meetings with the parties and request the parties to provide any documents he or she deems necessary.

4. Impartiality of Mediator

The mediator must at all times be neutral and impartial during the mediation process. The mediator will be fair to both parties and ensure that each party is heard.

Q&A on Mediation

What is mediation?

Mediation, an Alternative Dispute Resolution (“ADR”), is a process of negotiation where parties, with the assistance of a neutral third party, attempt to find an agreed settlement. The neutral third party, also known as a mediator, guides the process to find a solution that preserves the relationship between the parties in a timeous and cost-effective manner.

Why choose mediation?

In an endeavour to restrict access to the Courts and abide by social distancing measures, Directions issued by the Minister of Justice and Correctional Services have restricted Courts to only hearing cases that are urgent and essential matters.

Civil cases are categorised as falling outside this scope; consequently, they will not be placed on the court roll for the duration of the lockdown. Notwithstanding, heads of the Court may choose to “authorise the hearing of matters through teleconference or videoconference or any other electronic mode, which dispenses with the necessity to be physically present in a courtroom.”

In all likelihood, the lockdown and its aftermath will bring a great number of legal disputes that the Courts will not have the capacity to hear. Mediation presents an opportunity for parties to resolve disputes without undue delay.

What are the advantages of mediating disputes?

Aside from the obligation imposed by Article 41, there is ample reason for parties to consider mediation voluntarily before resorting to litigation. Mediation offers the following advantages:

  • Minimises reputational damage as mediation is a private negotiation

  • Cost-effective

  • No undue delays

  • More likely to reach an agreement quickly than in court proceedings

  • Preservation of the disputing parties’ relationship

  • There is no prejudice against the parties if the mediation is unsuccessful

  • If mediation is successful, the settlement is not binding upon the parties

What kinds of disputes can be resolved through mediation?

Most types of disputes can be mediated. Some examples include family disputes, tenant-landlord disputes, sectional title schemes, contractual disputes, damages claims, and labour law claims.

What is the difference between mediation, arbitration, and litigation?

Mediation a non-binding and informal process that is facilitated by a mediator that assists the parties in reaching an agreement.

Arbitration often a binding process that is conducted by a single arbitrator or a panel of arbitrators that fulfil the function of a judge.

Litigation a formal process whereby the judge issues a binding ruling.

Is mediation confidential?

Discussions that take place in the mediation are entirely confidential and may not be disclosed to others, including being used as evidence in court. The confidentiality requirement is a key element in ensuring that a dispute is resolved. Even if the parties fail to reach a dispute, the discussions remain confidential.

If a party wishes to keep the information confidential from the other party during mediation, they need only request that the mediator does not disclose the information.

Is mediation successful in resolving disputes?

If the parties to the dispute are willing to engage with the process and a qualified mediator has been appointed, it is highly probable that mediation will prove successful and a solution will be reached that benefits both parties.

What if mediation is unsuccessful?

If the parties cannot agree upon a solution after the mediation process, this does not prejudice them in any way. Parties may turn to arbitration or litigation for relief.

How long does a mediation last?

Mediation is a speedy process that may be resolved within a matter of days or weeks.

What if a party fails to adhere to the agreement?

A settlement agreement drafted in mediation becomes enforceable as a contract in a Court. As such, if the parties agree, the contract attains the status of an order of the Court.

How can Mediate Works assist?

Mediate Works has a diverse panel of highly experienced experts from enquiry chairpersons, investigators, facilitators, mediators, counsellors, and lawyers to assist.

We offer trained external mediators to assist with expedited mediation hearings and we have adapted our processes to comply with the law, your disciplinary framework, and the need to comply with the current lockdown regulations. We use secure and efficient online platforms to deliver.