Why should legal practitioners and their clients take note of Rule 41A of the High Court, which came into effect in March this year?
The purpose of this rule is to reduce the burden on courts of litigation that could have been disposed of at an earlier opportunity. By requiring both parties to indicate whether they are willing to mediate at the start of litigation, the intention is that those matters where parties are willing to talk to each other will get resolved without the involvement of the courts.
What is mediation? How does it differ from arbitration and litigation?
Mediation is a much quicker and more informal process in which the parties represent themselves, although they may be assisted by legal representation. There are no fixed rules and there is no preconceived schedule of outcomes. The parties may resolve their dispute on any basis that they like – as long as it is not against the law. For example: the formal legal system does not make provision for a ruling based on bartering, whereas, with mediation, parties in the farming community may decide to resolve their dispute by rendering produce to settle a debt or offering livestock in exchange for equipment. This type of arrangement is not catered for in the formal legal system.
Which disputes may go to mediation?
All disputes. If you can litigate it you can mediate it.
LindsayKeller is well-positioned to offer mediation services. What are your qualifications and relevant experience, and what makes a good mediator?
I have been a litigation attorney for 33 years. I hold a BCom degree, majoring in economics, an LLB degree and a post-graduate diploma in labour law (cum laude). I have been admitted to appear in all the High Courts since 1991. I am also a CD/ACDS-accredited commercial mediator.
What is the role of a mediator like yourself?
The role of the mediator is to bring the parties to a solution of their problem. It is important that it is understood that the mediator does not “rule” on the matter and render a solution – in fact, in most formal mediations he or she will not even express an opinion on the matter. A good mediator is able to secure the trust of both parties so that they disclose their real desired outcome, not their formal postured position, and help them to reach a solution themselves that addresses both parties’ real needs or desires. In mediation, there are never winners or losers, only successful outcomes or failed mediations.
How long does mediation take and who pays for it?
Mediation is paid for by the parties equally unless they agree to a different arrangement, which they are free to do. It takes as long as is necessary but within a day one should have a sense of whether it will be successful or not.
What impact will Rule 41A have on the justice system in South Africa?
The theory is that mediation should speed up the resolution of disputes and reduce legal costs. It should also help to unclog court trial rolls. Those matters that have to go to litigation will be able to do so much earlier, which is in the interest of justice.