Mastering Mediation Rule 41A of the High Court Practice Act: South Africa

Описание: To reduce the backlog our judicial system is facing, Rule 41A of the Uniform Rules of Court went into effect on 9 March 2020.

This encourages parties to settle their disputes rather than engage in costly and protracted litigation.

Under this Rule, parties must elect to participate in mediation or to oppose participation in mediation.

Mediating a dispute is a recognised Alternative Dispute Resolution process, is a voluntary process by which the parties to a dispute enlist a neutral third party for assistance.

Rule 41A prepares the ground for litigants to mediate, prior to going to court.

Mediation practice requires that the parties sign an agreement to mediate before mediation, in which they agree to:

Appointment of an appropriately qualified mediator.
The expenses of the mediation, and this includes the costs of the mediator.
When and where the mediation is to take place.
It is thus important to note that mediation is –
1. A voluntary process; and
2. Uses a neutral third party.

In the sphere of High Court litigation, mediation is facilitative in nature.

This means the mediator will structure the process in such a way that it will try to assist parties in reaching a mutually beneficial settlement.

In accordance with Rule 41A, the party who initiates action against another must serve a notice that she/he either agrees to mediation or opposes it. A summons or notice of motion is usually served with this notice.

After receiving the replying notice, the defending/responding party must indicate if they are willing to participate or not.

Mediating a dispute would require the parties to agree on the terms of the mediation and the mediator’s identity before the process can begin.

An experienced mediator in a particular field with training in assisting disputes in a particular field would be a mediator.

The onus is therefore on the party’s representatives to recognize issues that can be successfully resolved through mediation.