The wheels of justice turn, albeit not as quickly as some would prefer. Section 34 of the Constitution provides that everyone has the right to have any dispute that can be resolved by the application of law decided in a fair, public hearing before a court, or independent and impartial tribunal or forum. In an ideal world, everyone would be able to access the court and have their matters heard and resolved within a reasonable timeframe. However, the reality is that courts are often inundated as they try to ensure that everyone can exercise their right of access to courts as is enshrined in the Constitution.
Unless there are grounds for immediate urgency, parties can wait for months, if not years, to have their matters heard in court. To ease this heavy burden weighing on the judiciary, with effect from 9 March 2020 the legislature published an amendment to the High Court Rules to include a new “Rule 41A”, which provides for mediation as an alternative dispute resolution mechanism that must be considered by parties before instituting proceedings in court. Mediation is a viable option for parties as it provides a quick and cost-effective method in which parties can resolve their disputes outside of a courtroom.
The rule defines mediation as “a voluntary process entered into by agreement between the parties to a dispute, in which an impartial or independent person, the mediator, assists the parties to either resolve the dispute between them, or identify issues upon which agreement can be reached, or explore areas of compromise, or generate options to resolve the dispute, or clarify priorities, by facilitating discussions between the parties and assisting them in their negotiations to resolve the dispute.”
Whilst the mediation process is voluntary, parties are nevertheless obliged to consider mediating their matters to resolve their disputes out of court as quickly and as efficiently as possible. By virtue of this rule, whenever a plaintiff or applicant intends on launching an action or an application proceeding, they are required to serve a notice on the defendant or respondent which indicates whether they agree to or oppose the referral of the dispute to mediation. This notice must accompany the summons or notice of motion.
Thereafter, the defendant or respondent can notify the plaintiff or applicant whether they agree to oppose the referral of the dispute to mediation. This notice will accompany the notice of intention to defend or the notice of intention to oppose, although it can be served at any time up until the delivery of a plea or answering affidavit. Notwithstanding the aforesaid time periods, the matter can be referred to mediation at any time until judgment is passed, with leave of the court if the matter is already being heard.
This notice shall clearly set out the reasons as to whether the party in question believes the dispute is or is not capable of being mediated. If the dispute has been referred to mediation, the parties will sign a joint-minute which places on record their intention to mediate and the parties will have 30 days in which to do so. The original proceedings will be suspended until the mediation process has been finalised or the 30-day period has expired. Not only does this rule provide relief for litigating parties in general, it also assists the courts in focussing on those matters that cannot be resolved out of the courtroom.
Living in today’s uncertain times, the introduction of this rule is welcome. Since the start of the pandemic, legal practitioners have been forced to consider safer and alternative platforms in which to engage with their clients, opposing parties and the courts. Technology has come to the forefront in providing a much-needed resource wherein parties can set up meetings to safely discuss matters online and “face-to-face”. Mediation can also be conducted online, which will not only be safer for all parties involved, but will also reduce travelling costs and save time.
The introduction and implementation of this rule aims to ensure that everyone can have their dispute heard, in one form or another. Parties would be wise to seriously consider mediation as their first port of call, whilst keeping the courts in mind as an avenue of last resort. Exploring the benefits of mediation should lead to the desired result of oiling the wheels of justice, so that they can turn faster for all.
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).