Court Annexed Mediation is a central feature of most western legal systems. It is a sound and proven method for facilitating cost effective and expeditious dispute resolution outside of the normal adversarial forum within which the Law operates. The introduction of Court-Annexed Mediation Rules at Magistrate’s Court level bring proceedings in Magistrate’s Courts in line with the Constitutional imperatives set out in Section 34 of the Constitution of the Republic of South Africa thereby :-
- Promoting access to justice and restorative justice for the people of South Africa ;
- Seeking to preserve relationship between disputing parties which might otherwise have be destroyed or strained through the adversarial nature of the legal system
- Seeking to facilitate an expeditious and cost-effective resolution of disputes between disputing parties
- Assisting disputing parties by providing them with the potential for a wider and more extensive range of solutions to their dispute which range of options would ordinarily have been considered beyond the scope and powers of the judicial officer.
The new Rules of Court provide for a system in terms of which a disputant or potential disputant can refer a matter to mediation either before litigation commences or after its commencement but before judgement has been given in respect of that matter. In addition, a Court hearing a matter is empowered to enquire into the possibility of the matter being referred to mediation and give the parties the opportunity to refer the matter to mediation.
The process for submission of a dispute to mediation remains voluntary and the Rules do not make any provision for compulsion through cost sanctions in those cases where one or both parties are not amenable to the matter being mediated.
In terms of the Rules all discussions and disclosures made during the mediation are deemed confidential and inadmissible as evidence unless the said disclosure or discussion has been recorded in a settlement agreement and signed by the parties or unless the said discussions and disclosures are discoverable in terms of the rules of court or any other Law.
The costs of the mediation is to be shared equally by the parties unless the one party agrees to pay the fees in full. parties are permitted to have their legal representatives assist them at mediation.
Currently the Rules are being run on a pilot scheme basis in various of the Johannesburg and Pretoria Magistrate Courts with roll out to the rest of the country to take place on a piecemeal basis according to resource availability.