MEDIATION IN THE SPOTLIGHT AS NEW HIGH COURT RULE MAKES IT MANDATORY
A change to the High Court Rules, which took effect on 9th March 2020, now requires the parties to all new actions or application proceedings to consider mediation.
Mediation is a voluntary process entered into by agreement between the parties to a dispute, in which an impartial and independent person referred to as the mediator, assists the parties by facilitating discussions between the parties, assisting them in identifying issues, clarifying priorities, exploring areas of compromise and generating options to resolve the dispute.
The plaintiff or applicant is now required to serve a notice with a summons or notice of motion, in terms of which they indicate whether they agree to, or oppose the referral of the dispute to mediation The defendant or respondent is likewise, required, together with his notice of intention to oppose or defend, required to serve a notice indicating whether he agrees to, or opposes, the referral of the dispute to mediation. These notices must set out the reasons for the party’s election.
These notices are without prejudice and shall not be filed at court unless an Order for costs is being considered.
If the parties agree to refer the dispute to mediation, they shall deliver a joint signed minute recording their election to do so, whereupon the time limits prescribed by the Rules of Court for the delivering of further pleadings, notices and filing of affidavits are suspended.
The mediation process is to be concluded within 30 days from date of signature of the joint minute, unless such time period is extended by a Judge.
The parties can choose/agree to refer only certain issues for mediation and any issue which remains in dispute, may proceed to litigation. Once the mediation process is concluded, a joint minute is to be filed at court indicating whether full or partial settlement was reached, or whether mediation was unsuccessful. Unless the parties agree otherwise, all parties involved in the mediation process will be liable for the fees of the mediator which shall be borne equally by the parties.
Mediation has its advantages, in that it offers a speedy resolution of disputes and is considerably cheaper than litigation.
Remember, failure to comply with Rule 41A may result in unnecessary delays and unnecessary costs.
Contact Meumann White Attorneys for assistance.
Article by: Venilla Govender