In 2020, mediation emerged as the preferred method of dispute resolution.
When Rule 41A came into effect on 9 March this year it sparked debate in legal circles about the concept of mediation. However, mediation is not a new legal mechanism in South Africa but has been used effectively in many fields of law for decades. Its benefits cannot be overstated.
Leigh de Souza-Spagnoletti and Danie Weideman together have more than half a century of experience in litigation. We have both worked in the mediation space for some time now. Recently we started collaborating in mediations and we continue to train others in Road Accident Fund (RAF) mediations. We have also presided over a number of mediations in the first RAF mediation pilot project, which is spearheaded by SAMLA. These mediations have proved largely successful and brought about a shift in the thinking and approach of both the RAF and plaintiff attorneys.
The lack of access to courts in South Africa due to the Covid-19 pandemic has accelerated the use of mediation to resolve disputes between parties. Locally, attorneys are also beginning to see the benefits of mediation in previously uncharted fields. Our motto remains “If you can litigate it, you can mediate it”.
A question often asked is what legal practitioners should do in order to introduce mediation into their practices. Rule 41A offers a methodical guide to the mediation process and we implement it in our practices as follows:
- Ensure that you serve your notice in terms of Rule 41A(2)(a) or (b), recording your agreement to refer the matter for mediation. This notice must be served but not filed at court. It is not uncommon to see litigants omitting to serve this notice despite the peremptory provisions of the sub-rule.
- Whether or not you wish to compel delivery of this notice is a matter of preference.
- When the matter is ready for mediation, serve a notice in terms of Rule 41A(3), which calls upon your opponent to agree to referral for mediation within 10 days. There is no prescribed time period but 10 court days is considered an appropriate period in which to make this decision.
- If you don’t receive a response from your opponent (and to ensure compliance with Rule 30A), direct correspondence to them calling for a response to your notice in terms of Rule 41A(3) within 10 court days.
- If you still don’t receive a response, bring an application in terms of Rule 30A read with Rule 41A(3) for an order compelling your opponent to refer the action for mediation or to state reasons for their refusal.
Rule 41A does not give the court the power to order the referral of a matter for mediation but does allow it to order parties to consider mediation. The cost risk inherent in a refusal to mediate is substantial and this is believed to be a strong motivator to force parties to apply themselves to the possibility of mediation. A court may grant an adverse costs order against a successful litigant if the court is of the opinion that the matter could have been effectively resolved via mediation. Any settlement “on the steps of court” places even the successful party at risk of being deprived of its costs if the court does not accept that “on the steps of court” was the first effective opportunity to resolve the matter.
The extent to which our courts will implement Rule 41A remains to be seen, but we do foresee a significant shift towards alternative dispute resolution, especially to resolve the backlog of cases and help courts function more effectively.
The mediation process can be mastered by any legal practitioner. It is more time- and cost-effective than litigation.
We are available to provide guidance, represent your clients in mediations or act as mediators in any legal dispute. In fact, so fervent are we in our wish to see mediation succeed that we attach here our own notices as well as our application in terms of Rule 30A. While we claim no guarantees, we believe the same to be compliant.
Leigh de Souza-Spagnoletti
Leigh de Souza Attorneys and Mediators in association with Joshila Desai Inc.